Vigilantism and xenophobia thrive when the justice system and policing fail the people

by | Apr 10, 2022 | Chapter 9, General | 0 comments

By Paul Hoffman Follow 07 Apr 2022

Paul Hoffman SC is a director of Accountability Now.

It is the unenviable task of government to nurture respect for the rule of law in all inhabitants of the land. This is best done by creating a standard of law enforcement under which people do not feel the need to resort to self-help and vigilantism.

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Press reports concerning the re-emergence of vigilantism in the form of xenophobic attacks by supporters of Operation Dudula on some foreigners resident in South Africa, allegedly undocumented, allegedly taking away jobs from locals, suggest that it is time to consider some of the causes of this virulent form of vigilantism.

It is worthwhile to reflect upon the conditions in society which give rise to the levels of frustration, and indeed anger, which permit vigilantism to flourish to the extent that provocateurs spur ordinary folk to take the law into their own hands by attacking foreigners from other parts of Africa who have migrated in search of work and a better life than that available in their countries of origin.

When the Constitutional Court decided that capital punishment is unconstitutional in South Africa’s then-new progressive democracy, it spelt out what needs to be done about violent crime. Vigilantism is a form of violent crime. In his judgment, Justice Arthur Chaskalson, then President of the Constitutional Court, (later Chief Justice) held:

The high level of violent crime is a matter of common knowledge and is amply borne out by the statistics… The power of the State to impose sanctions on those who break the law cannot be doubted. It is of fundamental importance to the future of our country that respect for the law should be restored, and that dangerous criminals should be apprehended and dealt with firmly. Nothing in this judgment should be understood as detracting in any way from that proposition.”

Building upon these sentiments Justice Lourens Ackermann observed:

“Members of the public are understandably concerned, often frightened, for their life and safety in a society where the incidence of violent crime is high and the rate of apprehension and conviction of the perpetrators low. This is a pressing public concern. However important it undoubtedly is to emphasise the constitutional importance of individual rights, there is a danger that the other leg of the constitutional state compact may not enjoy the recognition it deserves… [In] a constitutional state individuals agree (in principle at least) to abandon their right to self-help in the protection of their rights only because the state, in the constitutional state compact, assumes the obligation to protect these rights. If the state fails to discharge this duty adequately, there is a danger that individuals might feel justified in using self-help to protect their rights.”

A situation in which undocumented foreigners are perceived to be flooding the job market (such as it is in these difficult times) is one that angers and frightens those on the margins of society who are perhaps jobless or in temporary work of precarious nature. Their fears are fertile breeding grounds for the vigilantes who feel free to take the law into their own hands against foreigners, alleged drug dealers and petty criminals from other parts of Africa.

The Bill of Rights entrenches the values of human dignity, equality and freedom in our Constitution. The state is obliged to respect, protect, promote and fulfil these rights. In particular “everyone has the right to freedom and security of his person — which includes the right… to be free from all forms of violence from either public or private sources.”

All of this is foundational to our democratic and open society in which government is based on the will of the people and every citizen ought to be equally protected by the law. Most of the rights in the Bill of Rights are also available to foreigners living in SA. Those legally here are even entitled to Sassa grants.

The current surge in vigilantism would appear to be due not only to ignorance but to the perceived failure of the state to properly discharge its duty through the efficient administration of the criminal justice system to ensure that criminals are apprehended and convicted as necessary conditions precedent to their punishment.

The focus appears to be on those in illegal forms of employment and those involved in the illicit drug trade. Our porous borders are at the root of the influx of undocumented immigrants from other African states in which conditions on the ground are more parlous than those in SA.

International comparisons reveal that vigilantism does not thrive in societies in which an appropriate amount of resources and skill are brought to bear upon the administration of criminal justice through the proper and adequate provision of policing, prosecution services, courts of law and correctional facilities.

The perception in question is shared by the former Deputy Minister of Justice, Advocate Johnny de Lange, who conceded in Parliament during the debate on the dissolution of the Scorpions in 2008 that, in his view, the criminal justice system in South Africa is dysfunctional.

This is the experience of many ordinary people who do not have access to the confidential police information and statistics upon which the former deputy minister no doubt based his assessment of the situation.

A dysfunctional criminal justice administration is intolerable. The dysfunction in the criminal justice administration continues to this day and is well documented in the work of the Institute for Security Studies.

The two most basic duties of governments in modern nation states are, firstly, to protect the country against foreign aggression and, secondly, to protect and secure inhabitants of the state and their property by the prevention, combating and investigation of crime and the maintenance of public order.

The South African “arms deals” have grossly over-catered for the threat of foreign aggression. Most of the arms bought in 1999 have never been used in anger, some of them are in mothballs (delicately called “preventative maintenance” by officialdom) or useless due to lack of funds to maintain them and crew to operate them.

On the second leg, the same is not the case. The police are notoriously understaffed, ill-equipped, inadequately trained, inappropriately promoted and generally under-resourced — Minister of Police Bheki Cele (formerly National Commissioner of Police until his dismissal for incompetence and dishonesty) says quantity, not quality is the order of the day for SAPS.

The courts, staffed by relatively ever fewer judges, are inundated and inadequately resourced, while correctional facilities (both during the Bosasa years and after) are corrupt, overcrowded hell holes in which criminality is promoted rather than corrected. Rehabilitation of offenders is the exception, not the rule. Unfortunately, there does not seem to be any “justice deal” of the size and scope of the “arms deals” under consideration by those at present in power in South Africa, although there could and should be.

Recovery of the loot of State Capture ought to be used to recapacitate and reform the criminal justice administration as it limps along. Open Secrets has mocked the NPA, calling it the National Postponement Authority. The institution has been hollowed out during the Zuma era and is infested with saboteurs put in place to ensure that those responsible for State Capture continue to enjoy impunity. The Hawks are so poor at the anti-corruption mandate they have been given that nobody is suggesting that they are part of the solution to the problems that beset the criminal justice administration.

It is accordingly not surprising that vigilantism is resorted to by some of those who consider that the state is not keeping its end of the bargain in the “constitutional state compact” to which Justice Ackermann referred.

In the absence of adequate state protection, lynch mobs, self-appointed vigilante committees and groups and kangaroo courts gain in popularity to the great prejudice of the institutions of state. As has been found by Judge Mahomed Navsa in the Supreme Court of Appeal: “Law and order break down even further with catastrophic consequences when vigilante action is resorted to… Ignoble methods can never serve an ostensibly noble cause. Law enforcement agencies will do well to note that inaction and apathy on their part lead to this kind of behaviour.”

It is the unenviable task of government to nurture respect for the rule of law in all inhabitants of the land. This is best done by creating a standard of law enforcement under which people do not feel the need to resort to self-help and vigilantism.

The Ministry of Justice is attempting to embark on the first steps towards a massive new investment of human and material resources in the criminal justice system. It needs the support of the public, the legal professions and civil society organisations in this endeavour. Any failure to bring to bear the necessary will and skill could well result in the anarchy and chaos that flow from unchecked vigilante action.

Looking northwards, examples abound. The world over, secure and satisfied citizens do not need to resort to vigilante action. According to the Rule of Law Index of the World Justice Project, South Africa scores very poorly on the “court access without undue procedural hurdles, judicial officers of sufficient number and competence, and crimes against persons prohibited and punished” sub-factors of the index. These aspects need attention if “bundu courts” and vigilante gangs are to be effectively put out of business.

It is as well to remember that problems of lawlessness are not new in South Africa. Consider the poetic prose of Alan Paton in Cry, the Beloved Country published in 1949:

“Have no doubt it is fear in the land. For what can men do when so many have grown lawless? Who can enjoy the lovely land, who can enjoy seventy years, and the sun that pours down on the earth when there is fear in the heart?… There are voices crying what must be done, a hundred, a thousand voices. But what do they help if one seeks counsel, for one cries this and one cries that, and another cries something that is neither this nor that.”

He was writing before a justiciable Bill of Rights and a supreme Constitution were adopted in South Africa. DM

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