CQ Cover June 2014 7/10/14 3:27 PM Page 1

Reviewing 20 years of criminal justice in South A f r i c a n QUA RT E R LY No. 48 | June 2014 Previous issues Stacy Moreland analyses judgements in ISS Pretoria cases in the We s t e r n Cape, finding that Block C, Brooklyn Court p a t r i a rchal notions of gender still inform 361 Veale Street judgements in rape case. Heidi Barnes writes a New Muckleneuk case note on the Constitutional Court case Pretoria, South Africa F v Minister of Safety and Security. Alexander Tel: +27 12 346 9500 Hiropoulos and Jeremy Porter demonstrate how Fax:+27 12 460 0998 Geographic Information Systems can be used, [email protected] along with crime pattern theory, to analyse police crime data. Geoff Harris, Crispin Hemson ISS Addis Ababa & Sylvia Kaye report on a conference held in 5th Floor, Get House Building Durban in mid-2013 about measures to reduce Africa Avenue violence in schools; and Hema Harg o v a n Addis Ababa, Ethiopia reviews the latetest edition of Victimology in Tel: +251 11 515 6320 South Africa by Robert Peacock (ed). Fax: +251 11 515 6449 [email protected]

Andrew Faull responds to Herrick and Charman ISS Dakar (SACQ 45), delving into the daily liquor policing 4th Floor, Immeuble Atryum in the . He looks beyond policing Route de Ouakam for solutions to alcohol-related harms. Claudia Forester-Towne considers how race and gender Dakar, Senegal influence police reservists' views about their Tel: +221 33 860 3304/42 work. Elrena Van der Spuy assesses the Fax: +221 33 860 3343 contribution of ethnographers and auto- [email protected] biographies to our understanding of policing in South Africa. Megan Govender looks at how ISS Nairobi crime statistics and the national victims of crime Braeside Gardens surveys are used to support opposing views of off Muthangari Road public perception about the levels of crime. The edition concludes with a discussion between Lavington, Nairobi, Kenya Oliver Owen () and Andrew Faull (South Tel: +254 20 266 7208 Africa) about the differences in how police Fax: +254 20 266 7198 performance in the two countries. [email protected] www.issafrica.org > Twenty years of punishment (and democracy) in South Africa > Political policing then and now > Criminal justice policy and remand detention since 1994 > Insider views on the Judicial Inspectorate for Correctional Serv i c e s > Addressing corruption in South Africa > Responses to organised crime in a democratic South Africa > Upholding children's rights in the criminal justice system The Institute for Security Studies is an African organisation which aims to enhance human security on the continent. It does independent and authoritative research, provides expert policy analysis and advice, and delivers practical training and technical assistance.

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Copyright in the volume as a whole is vested in the Institute for Security Studies, and no part may be reproduced in whole or in part without the express permission, in writing, of both the authors and the publishers. The opinions expressed do not reflect those of the Institute, its trustees, members of the Advisory Council or donors. Authors contribute to ISS publications in their personal capacity.

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First published by the Institute for Security Studies, P O Box 1787, Brooklyn Square 0075 Pretoria, South Africa www.issafrica.org SACQ can be freely accessed on-line at http://www.issafrica.org/publications/south-african-crime-quarterly

Editor Chandré Gould e-mail [email protected]

Editorial board Professor Ann Skelton, Director: Centre for Child , Judge Jody Kollapen, High Court of South Africa Dr Jonny Steinberg, Research Associate, Centre for Criminology, Oxford University Dr Jamil Mujuzi, Faculty of Law, University of the Western Cape Associate Professor Catherine Ward, Department of Psychology, University of Associate Professor Dee Smythe, Director of the Centre for Law and Society, University of Cape Town Professor William Dixon, Head of School, School of Sociology and Criminology, Keele University, UK Professor Rudolph Zinn, Department of Police Practice, University of South Africa Associate Professor Lukas Muntingh, Project Coordinator, Civil Society Prison Reform Initiative, Community Law Centre, University of the Western Cape

Sub-editors who worked on this edition Andrew Faull, PhD candidate, Oxford University Khalil Goga, PhD candidate, Stellenbosch University Camilla Pickles, PhD candidate, University of Pretoria Elona Toska, PhD candidate, Oxford University

Cover An artist’s impression of criminal justice over the past 20 years © Lize-Marie Dreyer

Production Image Design 071 883 9359 Printing Remata Contents

SA Crime Quarterly No. 48 | June 2014

Editorial Memory and forgetting: how meta-narratives about the past overshadow the future ������������������������������������� 3

Twenty years of punishment (and democracy) in South Africa ��������������������������������������������������������������������� 7 The pitfalls of governing crime through the community Gail Super

We need a complicit police! �������������������������������������������������������������������������������������������������������������������������� 17 Political policing then and now Julia Hornberger

Unsustainable and unjust ����������������������������������������������������������������������������������������������������������������������������� 25 Criminal justice policy and remand detention since 1994 Jean Redpath

Looking back ������������������������������������������������������������������������������������������������������������������������������������������������� 39 Insider views on the Judicial Inspectorate for Correctional Services Chloë McGrath & Elrena van der Spuy

Control, discipline and punish? �������������������������������������������������������������������������������������������������������������������� 49 Addressing corruption in South Africa David Bruce

Taking stock of the last 20 years ������������������������������������������������������������������������������������������������������������������ 63 Responses to organised crime in a democratic South Africa Khalil Goga

Court support workers speak out ����������������������������������������������������������������������������������������������������������������� 75 Upholding children’s rights in the criminal justice system Loraine Townsend, Samantha Waterhouse & Christina Nomdo

SA Crime Quarterly No. 48 • june 2014 A1

Editorial

Memory and forgetting: how meta-narratives about the past overshadow the future

Two decades on from 1994 seems an appropriate time to take stock of what has been achieved and where we have fallen short of our own expectations, and identify what remains to be done in South Africa. But perhaps it is also an appropriate moment to take stock of how we remember and represent our past and how the meta- narratives, particularly about and opposition to apartheid, inform and overshadow our present and future.

Memory is a curious thing, at both a social and individual level. While we are inclined to think of our memory as a static entity, scientists such as Charles Fernyhough describe it as a constantly changing set of impressions, informed as much by the needs of the present as by the experiences of the past.1 When the memories we have are of traumatic events, the process of remembering is even more fraught, especially when those who are doing the remembering do not share the same perspectives, experiences or social status.

For South Africans the construction of a collective memory about the experience of apartheid is thus fraught. While remembering the details of the past was regarded as an essential requirement for moving forward, we as a society did our remembering within a formal process guided by the Truth and Reconciliation Commission (TRC), and within a very narrow time period. After the TRC, arguably, we moved forward very quickly to forget – enabled by the construction of comfortable meta-narratives that do not disturb. This is consistent with trauma psychologist Judith Herman’s theory that ‘the knowledge of horrible events periodically intrudes into public awareness but … is rarely retained for long’. Indeed, she argues that ‘[d]enial, repression, and dissociation operate on a social as well as an individual level’. But, ‘like traumatised people, we need to understand the past in order to reclaim the present and the future’.2

The meta-narratives we have constructed draw very clear lines between ‘perpetrator’ and ‘victim’, ‘hero’ and ‘villain’, establishing these as distinct categories, despite the very real murkiness and fluidity between them, identified even by the TRC.3 I believe it is the untroubled acceptance of these categories of ‘othering’, applied post-apartheid, that creates the basis for justifying state violence.

Over the past 18 months the Foundation and the Global Leadership Academy of the German Development Agency (GIZ) have held a series of international dialogues about transitional justice and ‘memory work’. The driving motivation of these dialogues has been to overcome what practitioners, theorists and activists in the fields of peace-building and transitional justice have come to express as a stagnancy in thinking about, and approaches to dealing with, past injustices and conflict.

The dialogues have identified as a crucial element in any transition to democracy ‘respect for, and the provision of space for, the interrelated dynamics of remembering and storytelling’. At the same time they have recognised that globally our experiences have shown that ‘in the context of post-oppression or post-conflict, archives and memory regimes tend to alienate voices that are potentially important for a resilient and sustainable society; whether the reckoning takes place immediately or many years after the rights violations’. The concern underlying these views is that what is regarded as important to remember, and what is left unsaid or silenced, are shaped by today’s interests and powerful groups within societies.4

SA Crime Quarterly No. 48 • june 2014 3 Why is this relevant now, and why in the context of a 20-year review? The Presidency’s 20-year review5 of safety and security between 1994 and 2014 reveals an interesting, albeit contentious, analysis of the progress made in the field of criminal justice in the past 20 years. It adopts selective narratives as fact, but in reality they are open to enormous contestation. Arguably these narratives – and the language we use to tell them – trouble our ability to address persistently high levels of violence and to understand the root of the inability of the police service to establish a mutually respectful relationship with citizens.

The language that should trouble us is the language of war and othering that has persistently characterised official statements about crime and violence since crime rates peaked in 2001. The fifth volume of the TRC’s final report reminds us that the excuse that ‘we were at war’ was used to justify atrocities by state security forces, the African National Congress (ANC) and the . The context of war allowed the protagonists to undertake violent actions ‘with pride rather than distress or embarrassment’.6 Yet, while being at war implies the application of military discipline and hierarchy to those involved, the TRC found that ‘all parties fell short, in some respects, in imposing restraints and disciplines on their own members, followers and supporters’.7 The report also refers to leaders’ denial of responsibility for the actions of their supporters when things went wrong. This was as true of the ANC, United Democratic Front (UDF) and IFP as it was of the leaders of state security structures.

In relation to the police and policing a particular meta-narrative has been adopted, and is reflected in the Presidency’s 20-year review. The story we tell ourselves is that before 1994 the police existed only to uphold apartheid, and dealing with crime was given little attention, with the latter focused on the needs of the white population. We also tell ourselves, as reflected in the 20-year review, that community structures to oversee security under apartheid were both effective and progressive, thus informing attempts to recreate such structures in the form of community policing forums and community safety forums. We have chosen to forget the violence meted out by self-defence units (SDUs) in and the Western and . We have also chosen to forget the many differences, ideological and aspirational, that existed in black communities, choosing rather to represent these communities as homogenous. And we have forgotten policemen like Wilson Magadla who served in the , and later on the TRC, who worked tirelessly and with integrity to respond to crime in all communities during apartheid.

The concluding fiction presented in the Presidency’s 20-year review of safety and security is that a loss of morality is to blame for the high levels of violence in South Africa. The report holds that it is ‘moral decay’, a lack of respect, a failure to teach children the difference between right and wrong, that is at the root of violence, including violent public protests. My experience in speaking to perpetrators of violence over the past year has led me to understand that to speak of morality (and a loss of morality) in the context of structural violence, and in a country where violence is regarded as necessary to solve disputes, discipline children and partners, and invoke respect, is absurd. I would implore us rather, like James Gilligan8 proposes, to regard such violence as tragedy, acknowledge the trauma it gives rise to, and seek to intervene with humility and compassion.

Several of the articles in this edition serve to trouble our existing narratives. Gail Super’s article raises important considerations about the consequence of locating crime combatting as a ‘community’ function. While the intention behind the policy push towards ‘community policing’ may be to democratise policing, Super argues that it has had unintended consequences: ‘Because violent punishment is one of the consequences of the state’s turn towards democratic localism, we should question the way in which the “community” is deployed as a tool of crime prevention, and subject it to rigorous scrutiny.’

Julia Hornberger also tackles policing issues, arguing that to overcome the problem of violent public protests becoming more violent when the police intervene, would require the police to ‘become more explicitly partisan towards the citizens they serve, and help deliver the message inherent in each protest’.

4 institute for security studies

Crime Quarterly June 2014.indd 4 7/11/14 2:55:40 PM David Bruce offers an overview of state responses to corruption, showing that there is a robust legal and institutional infrastructure for addressing corruption that flounders because of unfair practices that favour those that hold power. The articles by Khalil Goga, Jean Redpath, Elrena van der Spuy and Chloë McGrath, and Loraine Townsend, Sam Waterhouse and Christina Nomdu offer a more traditional review of the past 20 years. Goga provides an overview of state responses to organised crime while Townsend and her colleagues offer a sobering assessment of court services to support child witnesses. In her article, Redpath shows that punitive bail and sentencing practices underlie the persistent problem of prison overcrowding. She argues that while ‘durations of remand detention have increased, convictions have decreased’, which results in an increasing proportion of people in remand detention who will not be convicted, while sentences are less likely than ever to contain a custodial component. Her conclusion: ‘the “tough on crime” approach has in practice turned into “justice delayed and freedom denied”’. Staying with prisons, Van der Spuy and McGrath draw on interviews with ‘insiders’ in the Judicial Inspectorate of Correctional Services, offering an insightful and important assessment of the efficiency of the oversight body. Finally, the image on the front cover of this edition is an artist’s impression of criminal justice over the past 20 years. The illustration is by Lize-Marie Dreyer, an honours student in visual arts at Stellenbosch University. This edition would not have been possible without the assistance I received from the sub-editors: Andrew Faull, Camilla Pickles, Khalil Goga and Elona Tosca. Thanks are also due to Bea Roberts, Janice Kuhler and Iolandi Pool, who are the production team and who willingly took on the extra work involved in producing a longer edition; and to Kathryn Smith from Stellenbosch University who encouraged her art students to contribute to this edition. This publication was made possible with funding from the Hanns Seidel Foundation and the Ford Foundation. The ISS is also grateful for support from the following members of the ISS Partnership Forum: the governments of Australia, Canada, Denmark, Finland, Japan, Netherlands, Norway, Sweden and the US.

Chandré Gould (Editor)

Notes 1 Charles Fernyhough, Pieces of light: the new science of memory, London: Profile Books, 2012, 6. 2 Judith Herman, Trauma and recovery: the aftermath of violence – from domestic abuse to political terror, New York: Basic Books, 1997, 2. 3 Truth and Reconciliation Commission Report, Volume five, Chapter 7, http://www.justice.gov.za/trc/report/finalreport/Volume5.pdf (accessed 25 June 2014). 4 Nelson Mandela Foundation and GIZ, Concept note: The Mandela dialogues: dialoguing memory work, February 2013 (unpublished). 5 The 20-year review: South Africa 1994–2014, Chapter 7: Safety and Security, www.thepresidency-dpme.gov.za/news/Pages/20- Year-Review.aspx (accessed 25 June 2014). 6 Truth and Reconciliation Commission Report, Volume five, Chapter 7, 226. 7 Ibid. 8 James Gilligan, Violence: Reflections on a national epidemic, New York: Vintage Books, 1997.

Editorial policy South African Crime Quarterly is an inter-disciplinary peer-reviewed journal that promotes professional discourse and the publication of research on the subjects of crime, criminal justice, crime prevention, and related matters, including state and non-state responses to crime and violence. South Africa is the primary focus for the journal but articles on the above- mentioned subjects that reflect research and analysis from other African countries are considered for publication, if they are of relevance to South Africa. SACQ is an applied policy journal. Its audience includes policy makers, criminal justice practitioners and civil society researchers and analysts, including the academy. The purpose of the journal is to inform and influence policy making on violence prevention, crime reduction and criminal justice. All articles submitted to SACQ are double-blind peer-reviewed before publication.

SA Crime Quarterly No. 48 • june 2014 5

Twenty years of punishment (and democracy) in South Africa

The pitfalls of governing crime through the community

Gail Super* [email protected] http://dx.doi.org/10.4314/sacq.v48i1.1

This article examines how the ideology of ‘community’ is deployed to govern , both by marginalised black communities and by the government. Although the turn to ‘community’ started under the National Party government in the late 1970s, there is no doubt that as a site, technology, discourse, ideology and form of governance, ‘community’ has become entrenched in the post-1994 era. Utilising empirical data drawn from ethnographic research on vigilantism in Khayelitsha, as well as archival materials in respect of ANC policies and practices before it became the governing party, I argue that rallying ‘communities’ around crime combatting has the potential to unleash violent technologies in the quest for ‘ethics’ and ‘morality’. When community members unite against an outsider they are bonded for an intense moment in a way that masks the very real problems that tear the community apart. Because violent punishment is one of the consequences of the state’s turn towards democratic localism, we should question the way in which the ‘community’ is deployed as a tool of crime prevention, and subject it to rigorous scrutiny.

With the advent of formal democracy in South in 2004, South Africa has the highest incarceration Africa in April 1994 one might have been justified rate in Africa and one of the highest in the world.2 In in expecting that the criminal justice system would 2013, the number of people serving life imprisonment become less punitive and that this would entail stood at 11 000, as opposed to 400 in 1994.3 less reliance on imprisonment as a punishment Democratisation has thus brought with it a dramatic par excellence.1 However, although the numbers in increase in long-term prison sentences, ranging custody have been reduced since an all-time high from seven years to life. One of the consequences has been an escalation in the number of maximum

* Gail Super has a PhD in Law and Society from New York security risk category prisoners. Prison overcrowding University, an MSc in Criminology from the London School of is rife (albeit unequally distributed) and social workers, Economics and Political Science and a BA LLB from the University psychologists and other professionals who are key of Cape Town. She has practised as a human rights lawyer 4 in Namibia, where she conducted extensive research on the for rehabilitation are in woefully short supply. Indeed, Namibian criminal justice system, focusing on restorative justice, in overcrowded prisons, prisoners only have 1,2 m2 in children in prisons and in pre-trial detention. She is currently 5 an honorary research associate at the Centre for Criminology, which to eat, sleep and spend 23 hours of the day. University of Cape Town. The conditions are, to say the least, appalling.6

SA Crime Quarterly No. 48 • june 2014 7 Yet, in 2002, precisely when the South African that significantly stigmatises deviance.10 Deploying rate of imprisonment had almost peaked, the Zimring’s concept of ‘symbolic transformation’ I argue Department of Correctional Services introduced a that the distrust that poor communities have of the restorative justice approach ‘aimed at facilitating the police translates into a call for more (and not less) mediation and healing process between offenders, punitive treatment of criminals.11 Finally, I make some victims, family members and the community’.7 recommendations for future research. This article discusses the apparent contradictions in, and consequences of, the state embracing Contradiction or coherence? ‘community’ based criminal justice initiatives in One explanation for the apparent contradiction tandem with long-term imprisonment. Although the in embracing the benign-sounding ‘community’, turn to community started in the late 1970s, under together with ‘the prison’, is that in fact these the National Party government, there is no doubt are not simultaneous, but consequential, penal that as a site, technology, discourse, ideology and developments. Thus, although the state embraced form of governance, the ‘community’ has become community policing and restorative justice in the early entrenched in the post-1994 era. It is, of course, one days of the heyday of democracy, of those terms that is so vague and amorphous as to in fact it soon thereafter shifted into a more punitive be capable of many different meanings. As such, it gear due to the panic about crime, and pressure to appeals to all parts of the political spectrum. do something about it.12 The argument, brought to The paper focuses on the punitive underside of its logical conclusion, is that community/democratic community, which, at its most extreme, manifests in policing is somehow opposed to the punitive style the form of vigilante killings. Drawing on ethnographic of policing recently adopted by the South African and documentary research into non-state crime state. In a challenging and provocative article prevention and punishment practices in Khayelitsha, Hornberger counters this analysis, arguing that the conducted between 2012 and 2014, I argue that ‘current [punitive] changes’ should be interpreted as vigilantism is in fact part of a continuum of violent ‘popular rather than elite or autocratic’.13 This helps technologies that are both connected with, and to make sense of what might otherwise appear to be imbricated in, this shift to governing through the ‘contradictory, incoherent trends’.14 8 community. Not only is the term ‘community’ a According to Hornberger, community policing, discursive construct but, as I argue, because of its which she refers to as ‘a policing of proximity’, distinctively punitive iterations, both in the present seeks legitimacy from the community. This involves and historically, it manifests as a peculiar mix of a ‘penetration of policing by forms of local justice’.15 socialist-based grassroots activism, coupled with These forms of justice, which include the call for violently exclusionary attitudes towards those ‘illegal violence’, are removed from what Hornberger accused of criminality. I show how violent punishment refers to as ‘the civility of the law’.16 I argue that is one of the consequences of this turn towards this ‘illegal violence’ is in fact part of a continuum of democratic localism. As such we should question the community-based crime prevention and punishment way in which the ‘community’ is deployed as a tool of practices, where the legal and illegal are blurred, and crime prevention, and subject it to rigorous scrutiny. where the state is complicit in the construction of I start by discussing the argument that community/ vengeful ‘communities’. In a context of great scarcity democratic policing is opposed to the principles of and rampant social and economic inequality, ‘mob’ liberal minimalism enshrined in the South African justice serves as an occasion for victims, and the Constitution.9 I then discuss the consequences of communities with which they are linked, to proclaim the ANC’s version of ‘mass political culture’; how the extent of their suffering and seek punitive redress. the ‘cultural patterns’ inherited from the struggle It is structured by the state insofar as victims (and against apartheid combine with the way in which their communities) have, in the past 20 years, the problem of crime, and what to do about it, is discursively at least if not always in practice, come to framed by political rhetoric, resulting in an approach assume a central role in the criminal justice system.

8 institute for security studies Instead of seeing vigilantism as a form of ‘mob process’ that includes ‘being paraded in front of justice’, as a scourge, as inimical to ‘civil’ society and community members’, via a ‘community parade’.23 as being somehow outside of and opposed to it, I A 1997 amendment to the Criminal Procedure Act argue that we should acknowledge how vigilantes, 51 of 1977 provides for crime victims and/or the or at least their supporters, are in fact part of ‘civil community in which the crime occurred to play society’.17 a role in bail decisions. In particular, a court may ‘Mass political culture’ refuse bail where the release ‘will disturb the public and the community order or undermine the public sense of peace or security’.24 The criteria that it may take into account Rooted as it is in 1980s notions of people’s power relate entirely to how the community will react to the and the left-wing notion of grassroots democracy, release. Thus bail may be refused where: the term ‘community’ has great rhetorical purchase in South Africa today. It encapsulates • The nature of the offence is likely to induce a sense the communitarian emphasis of the ‘people shall of shock or outrage in the community where the 25 govern’ clause of the , echoes the offence was committed global embracing of informalism, is presented as an • The shock or outrage of the community might lead effective means of combatting crime, and of course to public disorder dovetails with the neoliberal shift towards greater • The release might jeopardise the safety of the responsibilisation – across all fields of government accused – by shunting responsibility from the state to the ‘people’ (a.k.a. ‘the community’). • The release will undermine or jeopardise the sense of peace and security among members of the This form of governance, one that operates in public terms of a ‘liberation paradigm’, valorises local level initiatives by constantly seeking to mobilise • The release may undermine or jeopardise public communities on the ground.18 Thus, in 1992, the confidence in the criminal justice system26 ANC stated that it was ‘the community who are In this way then, the door is opened for an largely responsible for prosecutions [and] ... not ambiguous and vengeful ‘community’ to play a the police alone who combat crime’.19 One of the central role in the supposedly neutral criminal justice objectives of Community Policing Forums (CPFs) is system. Pratt refers to this as a ‘decivilising process’ to ‘enhance the ability of the police to combat and in terms of which the ‘liberal notions of unemotive prevent crime, disorder and fear, in partnership with sentencing and bail decisions’ are undermined.27 the community’, and parole boards are meant to give the ‘community’ a special say in release decisions.20 History of the present Not only has democratisation ushered in a growing Marginalised communities in South Africa have a discursive emphasis on giving crime victims a role history of self-policing. Moreover, political violence to play in sentencing, bail and parole decisions, but has always played a prominent role in local politics.28 the South African Police Service (SAPS) measures Both the National Party government and the ANC the success of its ‘social crime prevention strategy’ liberation movement used the death penalty against in terms of the number of crime awareness their enemies, and the radical traditions of people’s programmes, neighbourhood watches, business power and ungovernability sometimes resulted in forums and street committees that are established violent punishment.29 As such, punishment in South to deal with crime.21 In some instances the notion Africa has historically been relatively unconstrained of partnership policing even includes ‘mobilising the by the minimalist considerations associated with community to oppose bail’ via collaboration with the liberalism.30 CPF.22 Indeed, the community is so fundamental to policing in democratic South Africa that police will, in In the turbulent 1980s the apartheid state depicted future, be subjected to a ‘stringent new recruitment township activists as violent criminals and terrorists,

SA Crime Quarterly No. 48 • june 2014 9 stripping their acts of any political dimension. At the by means of the use of lethal force and to show same time the ‘comrades’ committed violent acts ‘no mercy’.36 This is a far cry from the 1992 ANC in the name of politics while accusing South African discussion document ‘Crime and crime control’ government officials and their lackeys of being the which, to give one example, ascribed gang formation real criminals. At times, when criminal gangs looted to ‘structural and political reasons’ and presented trucks driving into the townships, some political gang members as having ‘legitimate economic activists claimed that this was part of the struggle.31 needs’.37 Similarly, certain acts – such as ‘necklacing’ – that As such, there is no doubt that crime and punishment might otherwise be regarded as gratuitous violence, have assumed an ideological importance in the assumed some kind of political salience, due to the ‘new’ South Africa that is markedly different from the fact that the targets of these acts were accused of situation during apartheid. This ‘hyper-politicisation being spies or apartheid collaborators, and thus on of penal policy’ frames the field of punishment (and the wrong side of the ‘just war’. In fact, there was other ‘self-help’ initiatives) in Khayelitsha and other some substance to the claims of both the state marginalised South African townships.38 and political movements. Among and alongside the ‘comrades’, activities and people emerged The legitimacy conundrum to take advantage of these township struggles to wreak violence for their personal gain – hence the Community solutions to crime and policing are appearance of the label ‘comtsotsis’, meaning attractive, not because they actually reduce the criminals masquerading as ‘comrades’.32 incidence of offences but because, like punitive punishments, they reassure people that something is With the transition from a white minority government being done to collectively prevent crime.39 De Klerk to a black majority government in 1994, the ANC had argues that the ideology of collectivism encourages to transition from a liberation organisation calling for vigilantism because the raised expectations ungovernability in the black townships, to a governing generated by institutions of partnership policing, such party. As such it had to govern and demonstrate as CPFs, are inevitably not met.40 control over a crime situation about which citizens were becoming increasingly vocal, and which it had During evidence given at the Commission of Inquiry hitherto ignored. Tensions arose between its previous into Policing in Khayelitsha (hereafter referred to as pronouncements on how it would deal with crime, the ), a senior police officer the punitive practices that it now adopted, and its stated that he knew about ‘formal meetings’ that attempts to legitimate the police via community or had resulted in a decision to evict people from their ‘democratic’ policing. As crime became increasingly homes due to a crime.41 A resident testified that politicised – the subject of many parliamentary when the ‘community’ had called her to a meeting, debates and a general consensus on the need to demanding that her nephew leave the area due to treat criminals harshly – so too did the new ANC his alleged ‘criminality’, she did not argue, and did government seek to simultaneously legitimate the not think of other options: ‘Our main concern was previously vilified police and prove that it was not that he should leave the house so he wouldn’t be soft on crime. It did so via a two-pronged strategy harmed. We could see the mood of the residents of implementing community policing and uncoupling and it appeared that they would do something.’42 criminals from a political and social context, Another witness stated that the boys who had presenting them as a threat to the country’s young allegedly stolen his niece’s money, leather jacket and democracy. Thus, at the opening of Parliament cellphone climbed into his car voluntarily because in 1995, then President Nelson Mandela blamed ‘they were asking us not to assault them, saying that crime and violence for ‘eroding the foundation of our their parents were going to pay back the money’.43 democracy’, necessitating a ‘harsher approach’.33 A Similarly, a teenager living in a tin shack in Enkanini decade later, political leaders have called on police told me that when her blankets and hair-iron were to ‘kill the bastards’,34 to ‘teach them a lesson’35 stolen during a break-in she did nothing, because

10 institute for security studies she did not see the thieves – but that if she had seen when they should not be, that prisons are like five- them she would have alerted the ‘community’ to star hotels, that the criminal justice system is too assist her in retrieving her goods.44 In this sense then, slow, that the police do not do their jobs properly, there is a desire for criminals to be banished and for that there are too many acquittals, that there are the victims to get their goods back. too many early releases; the list is endless. One only Banishment in informal settlements sometimes has to peruse the record of the evidence given at takes the form of demolition of the dwellings of the Khayelitsha Commission to find overwhelming suspected criminals. In some instances a decision evidence in this regard. The point of this article is taken at street committee level to banish an ‘offender’ not to prove/disprove the veracity of these claims by demolishing his/her shack is taken too far but to note their prominent presence and, at the when the enforcers not only destroy the dwelling same time, to observe how, in the quest for harsh but also assault (or kill) the resident, sometimes treatment of criminals, the negative consequences destroying other homes in the purging process.45 of imprisonment are almost entirely excised from the One of my interviewees was a member of three debate. different committees, all with varying relationships Despite this lack of trust in the criminal justice with the state: the local neighbourhood watch, a system, in what Zimring refers to as a process less formalised community patrol group, and the of ‘symbolic transformation’,50 the consistent call Khayelitsha CPF. He had also been a participant in the demolition of three shacks in an informal from residents in marginalised communities is for settlement after a decision to this effect was taken at a more intimate relationship with a punitive state. a ‘general council’ gathering of the street committees This translates into a call for more arrests, punitive in his area.46 Thus, members of neighbourhood punishments, including long prison sentences, and watches and street committees may be, or may the reinstatement of capital punishment.51 Even have been, the same people who become part of a though the state is largely absent/failing/distant, ‘mob’ – the point being that there is fluidity between however one describes it, citizens of ‘frontier structures. As such it becomes difficult to distinguish societies’, lacking the resources that the well-off the mob from the community, the unlawful from the have to deploy private security, translate an exercise lawful. of police power (in other words a punitive criminal justice system) into a service for victims.52 Where the police encourage the public to engage in partnership policing, join neighbourhood watches, Conclusion establish community patrols, and observe and report , they create the expectation that they will As Garland points out, ‘liberal institutions’ such as be available to assist in instances when crime is the rule of law and Bill of Rights are not the same detected.47 However, given a scarcity of resources, as democratic institutions.53 Whereas the former particularly in poorer communities, this promise tend to constrain state punishment, the latter are cannot be fulfilled. There are widespread allegations not concerned with restraint but with punishing in of police complicity and police have themselves accordance with what the majority wants. In South admitted that they tacitly permit violent community- Africa the history of the liberation struggle, combined based ordering processes.48 Surprisingly, some with apartheid-sanctioned self-help township members of the Social Justice Coalition (SJC) also initiatives, people’s courts, notions of community expressed support for the beating of ‘criminals’ by empowerment and grassroots localism, have given ‘community members’ as a technique to retrieve popular democracy an exceptional flavour. Looking stolen goods, even though they stated that they back from the vantage point of 2014, it is clear that themselves did not participate in violent activities.49 the South African version of mass democracy exists Dominant public discourse in South Africa is replete uneasily, side by side, with the liberal minimalism of with allegations that criminals are released on bail its Constitution.

SA Crime Quarterly No. 48 • june 2014 11 While the idea of community sounds progressive and reviewers for their helpful comments and, of course, inclusive, important questions should be asked about to Chandré Gould, the editor of this journal. the power relations between different communities, within communities, and between communities and To comment on this article visit state agents. The danger of rallying communities http://www.issafrica.org/sacq.php around crime combatting is that it can, and does, Notes unleash violent practices in the quest for a ‘moral 1 In 1992 the ANC stated that ‘our crime problems are NOT community’.54 The ironic twist is that ‘mob justice’ is being solved by large-scale imprisonment’ and that ‘however in part a mass technology to protect private property much one condemns those deeds’ the state response should show compassion for the perpetrator [emphasis in a context of endemic inequality.55 When community as in the original]. See African National Congress (ANC), members unite against an outsider they are bonded Discussion document: crime and crime control. What role should the police play?, Centre for Applied Legal Studies, for an intense moment in a way that masks the very File AK 2195, P2 Police, South African history archives, real problems that tear the community apart and/or University of the Witwatersrand, 1992, 7. separate it from other less or more socially connected 2 Judicial Inspectorate for Correctional Services, Annual report 1 April 2009 – 31 March 2010, 11, http://judicialinsp.dcs. and empowered communities.56 gov.za/Annualreports/Annual%20Report%202009%20 -2010.pdf (accessed 15 April 2014). I have argued in this article that violent community- 3 Judicial Inspectorate for Correctional Services, Annual based punishments are constitutive of, and report 1 April 2012 – 31 March 2013, note 44, 34, http:// constituted by, violent state punishments and crime judicialinsp.dcs.gov.za/Annualreports/ANNUAL%20 prevention practices (both lawful and unlawful). For REPORT%202012%20-%202013.pdf (accessed 15 April 2014). Between 2000 and 2010, sentences of life this reason South African researchers and policy- imprisonment increased by 572% and those serving more makers would do well to heed Johnson’s exhortation than ten years by 128%. See Judicial Inspectorate for Correctional Services, Annual report 1 April 2009 – 31 March to ‘examine the conditions that determine whether 2010, 15. and to what extent participants in community-based 4 Ibid., 25; Judicial Inspectorate for Correctional Services, crime prevention initiatives are prepared to act Annual report 1 April 2012 – 31 March 2013, 81. outside the law in given circumstances.57 5 Judicial Inspectorate for Correctional Services, Annual report 1 April 2006 – 31 March 2007, 16, http://judicialinsp.dcs. In particular, a research agenda in marginalised gov.za/Annualreports/ANNUAL%20REPORT%202006.pdf (accessed 16 April 2014). communities should include the phenomenon of 6 The conditions, as is the case with overcrowding, vary from punitive populism by mapping the field of crime prison to prison. prevention and punishment practices – asking how 7 Department of Correctional Services, Annual report 1 penality is constituted within specific localities. January 2000 – 21 March 2001, Foreword. Instead of presenting ‘communities’ and ‘mobs’ as 8 My research methodology included selective in-depth interviews with residents of Khayelitsha: a member of self-evident binaries we should interrogate the power Mayitshe (a community patrol group), the Chairperson of the relationships, local politics, societal networks, social ‘Father’s Committee’ in Enkanini (an informal settlement), members of the Social Justice Coalition (SJC), community capital and other dynamics that constitute these journalists who were following vigilante incidents, five street transient and non-homogenous groupings. committee members, four residents who openly identified themselves as ‘vigilantes’, and three mothers of victims of Acknowledgements vigilantism. I also conducted participant observation in the SJC ‘Campaign for Safe Communities’ meetings, attended Some of the research for this paper was conducted the first ten days of the proceedings of the Commission of Inquiry into Policing in Khayelitsha (hereafter referred to while the author was an NRF sponsored post- as the Khayelitsha Commission) and the proceedings in doctoral researcher at the Centre for Criminology, The State vs Mziwabantu Mncwengi, Mzimasi Mncwengi, University of Cape Town. The author would like to Buyelwa Mncwengi, Lumnko Babalaza, Xolani Makapela, Mawende Siboma, case number SS03/2013, Western Cape thank the Social Justice Coalition, in particular Joel High Court, South Africa (part-heard), where the accused Bregman and Welcome Makele, for having assisted were charged with the kidnapping and murder of four youths who were alleged to have stolen the plasma television set of in arranging many of the interviews with residents in one of the accused. This was supplemented by documentary Khayelitsha. Thanks are also due to the anonymous research (including the official records of the Khayelitsha

12 institute for security studies Commission, the judgements in court cases that dealt with monographs/monograph-72-violent-justice-vigilantism- vigilante incidents, and documents that the Western Cape and-the-states-response-makubetse-sekhonyane-and- Department of Community Safety made available for my antoinette-louw (accessed 15 April 2014). These authors perusal). argue that vigilantes are outside of and opposed to ‘civil 9 I use the term ‘liberal minimalism’ to refer to those Chapter society’. See, however, Fouchard, The politics of mobilization Two rights that constitute the essence of liberal democracies, for security, 607–627, 609. Fouchard argues that there is ‘no namely life, equality, freedom and security of the person, clear distinction between vigilantism and community policing access to courts and the rights of arrested and detained and instead [they] should be analysed as two sides of the same mobilization process’. persons. However, it should be noted, as one of the anonymous reviewers pointed out, that because the South 18 Darracq, The African National Congress (ANC) organization African Constitution protects civil, political, economic and at the grassroots, 595. cultural rights there is debate as to whether it is minimalist or 19 ANC, Discussion document: crime and crime control, 8–9. not. 20 See Department of Safety and Security, Community policing, 10 The term ‘mass political culture’ comes from Vincent policy framework and guidelines, 1997, 8; and Department Darracq, The African National Congress (ANC) organization of Correctional Services, Correctional supervision at the grassroots, African Affairs 107(429) (2008), 589–609, and parole boards, http://www.dcs.gov.za/Services/ 595. CorrectionalSupervisionandParoleBoards.aspx (accessed 14 11 According to Zimring the ‘symbolic transformation of capital April 2014). punishment’ entails its transformation from being a symbol of 21 Khayelitsha Commission, Affidavit of Provincial Commissioner a powerful state into a form of victims’ redress. This is crucial Western Cape Arno Heinrich Lamoer, Western Cape annual in constructing popular support for the death penalty in the performance plan 2012–2013, Annexure PC1, http://www. American South where distrust of government is the norm. khayelitshacommission.org.za/images/witnesses/83._ Zimring argues that ‘“vigilante” cultural traditions sustain Lieutenant_General_Arno_Lamoer.pdf (accessed 15 April the idea of harsh punishment as a communal ritual on the 2014). Chandre Gould notes that giving victims a role in the victim’s behalf and counteract the inhibiting effect of distrust criminal justice system is ‘stuck at a policy level with crime of government on support for the death penalty’. See Steven victims often complaining that they are in fact not consulted’. Messner, Eric Baumer and Richard Rosenfeld, Distrust of Personal communication, 10 April 2014. government, the vigilante tradition, and support for capital 22 Khayelitsha Commission, Affidavit of Colonel Michael Francis punishment, Law & Society Review 40(3) (2006), 559–590, Reitz, SAPS Lingelethu West performance plan 2010–2011, 560. 33, http://www.khayelitshacommission.org.za/images/ 12 See, for example, Janine Rauch, Criminal justice after witnesses/58.%20Statement%20of%20Col%20Reits%20 apartheid, in C Call (ed), Constructing justice and security SAPS%20statement%20file%201.pdf (accessed 15 April after war, Washington DC: United States Institute of Peace 2014). Press, 2007; and Dirk van Zyl Smit and Elrena van der Spuy, 23 Michelle Jones, New breed of police recruits on parade Importing criminological ideas in a new democracy: recent soon, Cape Times, 28 March 2014, 7. South African experiences, in Tim Newburn and Richard 24 Criminal Procedure 2nd Amendment Act 1997 (Act 85 of Sparks (eds), Criminal justice and political cultures, national 1997), Section 4(d). and international dimensions of crime control, Cullompton: 25 Section 4 (e) inserts Section 8A into the original Act, i.e. into Willan, 2004. Criminal Procedure 1977 (Act 51 of 1977), Section 60 (a). 13 Julia Hornberger, From General to Commissioner to General 26 Section 4(d). – on the popular state of policing in South Africa, Law & Social Inquiry 38(3) (2013), 2. 27 John Pratt, Punishment and ‘the civilizing process’, in Jonathan Simon and Richard Sparks (eds), The Sage 14 Ibid. handbook of punishment and society, Los Angeles, London, 15 Ibid., 12. See also Fouchard, who argues that community New Delhi, Singapore, Washington DC: Sage, 2013, 97. policing does not have a uniform definition but may be used 28 See Jan de Klerk, Community Policing Forums – inducing as a ‘euphemism for a particular concept of police–civil vigilantism, Servamus (October 1999), 48–52. He refers to society relations which include different local structures such the Sophiatown Nightwatch, the Christmas Watchmen, as Community Police Forums, ad hoc anti-crime campaigns the Bangalalas, Makgotlas and SDUs that all operated and neighbourhood watch schemes’. Laurent Fouchard, at various points pre-1994. See also Mike Brogden and The politics of mobilization for security in South African Clifford Shearing, Policing for a new South Africa, London: townships, African Affairs 110 (441) (2011), 608–609. Routledge, 1993; Nicholas Haysom, Mabangalala: the rise of 16 Ibid. rightwing vigilantism in South Africa, Centre for Applied Legal 17 See Anthony Minnaar, The new vigilantism in post-April Studies, 1986; James Martin, Vigilantism and state crime in 1994 South Africa: crime prevention or an expression of South Africa, State Crime 1(2)(2012), 217–34; Gary Kynoch, lawlessness, Institute for Human Rights and Criminal Justice Urban violence in colonial Africa: a case for South African Studies, May 2001; Benjamin Häefele, Vigilantism in the exceptionalism, Journal of Southern African Studies 34(3) Western Cape, Department of Community Safety, Western (2008), 629–45. Cape Provincial Government, 2006; Makubetse Sekhonyane 29 Lars Buur and Steffen Jensen, Introduction: Vigilantism and Antoinette Louw, Violent justice, vigilantism and the and the policing of everyday life in South Africa, African state’s response, Monograph 72, Institute for Security Studies 63(2) (December 2004), 139–152; Gary Kynoch, Studies (ISS), 2002, http://www.issafrica.org/publications/ Of compounds and cellblocks: the foundations of violence

SA Crime Quarterly No. 48 • june 2014 13 in , 1890s to 1950s, Journal of Southern 43 Personal notes taken during Mr Simelele’s testimony, 27 African Studies 34(3) (2011); Benedito Machava, State January 2014. discourse on internal security and the politics of punishment 44 Interview, 16 October 2013. in post-independence Mozambique, Journal of Southern 45 Interview with the chairperson of the ‘X’ South African African Studies, 37(3) (2011), 593–609; Jeremy Seekings, National Civic Organisation (SANCO) branch, 19 October The revival of ‘people’s courts’: informal justice in transitional 2013; interview with representative of the Mayitshe Group, 1 South Africa, in G Moss and I Obey (eds), South African February 2014; interview with the chairperson of the Fathers’ Review 6, Johannesburg: Ravan, 1992, 186–200; Gail Super, Committee, Enkaninini, 1 February 2014; testimony by Governing through crime in South Africa: the politics of race Nomakuma Bontshi, Khayelitsha Commission, 24 January and class in neoliberalising regimes, Surrey, Burlington: 2014, testimony by Mr Hendrickse, Khayelitsha Commission, Ashgate, 2013; Richard Wilson, The politics of truth and 31 January 2014; interview with a former member of reconciliation in South Africa, legitimizing the post-apartheid Amadlozi (a vigilante organisation in ), 29 state, Cambridge, New York, Melbourne, Madrid, Cape January 2014; interview with witnesses in The State vs Town: Cambridge University Press, 2002. Mziwabantu Mncwengi, Mzimasi Mncwengi, Buyelwa 30 See David Garland, Penality and the penal state, Criminology Mncwengi, Lumnko Babalaza, Xolani Makapela, Mawende 51 (3) (2013), 475–517, where he discusses this in an Siboma, 26 August 2012. See also Steffen Jensen, Policing American context. Nkomazi: crime, masculinity and generational conflicts, in 31 Steffen Jensen, Gangs, politics and dignity in Cape Town, David Pratten and Atreyee Sen (eds), Global vigilantes, New Oxford, Chicago, Johannesburg: James Curry, University of York: Columbia University Press, 2008, 47–68. Chicago Press, Wits University Press, 2008. 46 It should be noted that, although interviewees consistently 32 Bronwen Harris, ‘As for violent crime that’s our daily bread’: referred to street committees as making the banishing vigilante violence during South Africa’s period of transition, decisions, this does not necessarily mean that these bodies Violence and Transition Series 1, May 2001; Jensen, are affiliated to SANCO, since the term is a code for many Gangs, politics and dignity in Cape Town; Minnaar, The new types of gatherings. See Bongani Tshehla, Non-state justice vigilantism in post-April 1994 South Africa; Michael Morris in the post-apartheid South Africa – a scan of Khayelitsha, and Douglas Hindson, South Africa: political violence, reform African Sociological Review 6(2) (2002), 47–70. and reconstruction, Review of African Political Economy 53 47 De Klerk, Community Policing Forums – inducing vigilantism, (1992); Gail Super, The spectacle of crime in the ‘new’ South 51. Africa: a historical perspective (1976–2004), British Journal of 48 See Major General CP de Kock, Serious crime in Khayelitsha Criminology 50(2) (March 2010). and surrounding areas, Crime Research and Statistics, Crime 33 Department of Safety and Security, Policing priorities and Intelligence (AL 30), 3 August 2012, iv. In this report De objectives for 1999/2000, 1999, 9. Kock, after referring to taxi associations as being ‘in control 34 ‘Kill the bastards’ – Minister’s astonishing order to police, The of vigilante actions’, states: ‘They [the taxi associations] Star, 10 April 2008. even went as far as imposing a curfew after 21:00 in the evening. Everyone (including the police) was very happy 35 SAPS must fight fire with fire, The Citizen, 12 November with the decrease in crime at the time …’ Although this was 2008. admitted in the context of what happened six or seven years 36 Johann Burger, 2009, cited in David Bruce, An acceptable ago, police complicity is still evident. See in this regard the price to pay? The use of lethal force by the police, testimony of school principal Mr Mjonondwana, Khayelitsha occasional paper 81, Open Society Foundation, Criminal Commission, 28 January 2014. This was also the sense I got Justice Initiative, 2010, 9, http://osf.org.za/wp/wpcontent/ from chatting to police officers during court adjournments at uploads/2012/09/CJI_Occasional_Paper_81.pdf. the Western Cape High Court in August 2013. 37 ANC, Discussion document: crime and crime control, 8–9. 49 This was communicated to me during interviews with 38 The phrase ‘hyper-politicization of penal policy’ comes from four SJC members on 4 February 2013, during informal Marie Gottschalk, The carceral state and the politics of conversations I had, and during a group meeting facilitated punishment, in Simon and Sparks (eds), The Sage handbook by the Centre for the Study of Violence and Reconciliation of punishment and society, 217. on 13 March 2013. Given the SJC’s left-wing, human rights- based credentials and the fact that it is sensitive to the social, 39 See Nicola Lacey and Lucia Zedner, Discourses of economic and structural circumstances that might lead some community in criminal justice, Journal of Law and Society people to committing offences, one might have expected 22(3) (September 1995), 301–25; Joanna Shapland and Jon SJC members to be less supportive of the harsh treatment of Vagg, Policing by the public, London: Routledge, 1988. criminals. 40 De Klerk, Community Policing Forums – inducing vigilantism. 50 Messner, Baumer and Rosenfeld, Distrust of government, 41 Established by the premier of the Western Cape in 2012 and 561–562. mandated to investigate ‘allegations of police inefficiency and 51 Ironically, even Advocate Masuku, acting for the SAPS in of a breakdown in relations between the community and the the Khayelitsha Commission, referred to the desirability of police in Khayelitsha’. See Khayelitsha Commission, Record, the death penalty when, while cross-examining a witness, 31 January 2014, 4636, http://www.khayelitshacommission. he stated: ‘So if for example a person was arrested and org.za/2013-11-10-19-36-33/hearing-transcriptions/public- evidence was properly collected and the prosecution was sitting.html (accessed 18 May 2014). properly done and there was a conviction and the person 42 Personal notes taken during Nomakuma Bontshi’s testimony, went to jail and in certain instances there was the death 24 January 2014. penalty … if that were to be done people would feel a little

14 institute for security studies more confident, confidence in the whole system.’ Khayelitsha Commission of Inquiry, Record, 31 January 2014, 958, http://www.khayelitshacommission.org.za/2013-11-10-19- 36-33/hearing-transcriptions/public-sitting.html (accessed 15 April 2014). 52 The term ‘frontier society’ comes from Craig Little and Christopher Sheffield, Frontiers and criminal justice: English private prosecution societies and American vigilantism in the eighteenth and nineteenth centuries, American Sociological Review 48(6) (1983), 796. 53 Garland, Penality and the penal state, 506. 54 The term ‘moral community’ comes from Buur and Jensen, Introduction: Vigilantism and the policing of everyday life in South Africa, 139–152, 144. 55 Violent retrieval of goods is clearly one of the goals of ‘mob justice’. This is clear from a perusal of the evidence given at the Khayelitsha Commission, where numerous people testified to ‘mobs’ having beaten alleged thieves to death in the quest to retrieve their property. It is also borne out by all of the interviews that I conducted. According to a police report, between April and June 2012 there were 78 recorded ‘vigilante incidents’ in Khayelitsha. Most of the victims were young men, between the ages of 18 and 30, with at least half having either been caught in the act of stealing/robbing/ housebreaking and/or suspected of the same. See South African Police Service, Bundu courts, 01 April to June 2012, Khayelitsha Cluster, unpublished report. 56 See George Herbert Mead’s classic piece on the psychology of punitive justice where he states: ‘The criminal does not seriously endanger the structure of society by his destructive activities, and on the other hand he is responsible for a sense of solidarity, aroused among those whose attention would be otherwise centered upon interests quite divergent from those of each other.’ George Mead, The psychology of punitive justice, American Journal of Sociology 23 (1918), 577–602, 591. 57 Les Johnston, What is vigilantism?, British Journal of Criminology 36(2) (Spring 1996), 232–233.

SA Crime Quarterly No. 48 • june 2014 15

We need a complicit police!

Political policing then and now

Julia Hornberger* [email protected] http://dx.doi.org/10.4314/sacq.v48i1.2

South Africa is witnessing a build-up of cases of public order policing gone wrong, in fact deadly wrong. Even the police are willing to admit that something is amiss. Yet the police response is a short-sighted one, which places the responsibility for the eruption of violence squarely with the people protesting, and underestimates its own role in aggravating the situation. I argue here that if the police wish to break the patterns of their long history of protecting a government and its partisan interests, and do not want to be misunderstood in their intention to serve the people, then simply increasing the capacity of public order policing will not help. On the contrary, we might end up (again) with a permanent occupying army. Instead the police have to become more explicitly partisan towards the citizens they serve, and help deliver the message inherent in each protest.1

The demise of public order policing armed with live ammunition, killed 34 striking miners who refused to disperse. Together these present a On 13 April 2011 Andries Tatane, a teacher and local frightening picture of police failure to deal with public activist, was killed by officers of the South African protests in a democratically acceptable manner. Police Service (SAPS) during a protest in Ficksburg, a small town in the , South Africa. Although In this article, I do not discuss what is behind the killing was captured live on video, all seven police such policing, or whether the police are political officers involved in the incident were acquitted of the instruments to suppress dissent, or even whether killing, as the state failed to prove beyond reasonable these incidences reveal police incapacity. While doubt who exactly had fired the deadly rubber bullets, these are important questions that should inform our and that there was ‘common purpose’ among the research agenda, I consider the issue from a different police officers involved in killing Tatane. This tragic perspective: refracting the response by government and brutal killing is seen by many as a watershed to this crisis of protest policing firstly in the light of moment, marking the definite return of police violence a long history of (public order) policing going back (repressive violence), well known from apartheid to the inception of policing in the 19th century, and times.2 It brought broad public awareness – not least secondly by comparing it to other more intimate because the event had been captured on video – to forms of policing, such as the policing of domestic a chain of similar incidences of police brutality during violence. protests both prior to and after that of Tatane.3 This includes the Marikana shootings, where the police, The government’s public response to incidents such as those described in the introduction to this

* Julia Hornberger is a senior lecturer in the Department of article has been to announce a steep increase in Anthropology at the University of the Witwatersrand. the capacity of public order policing. Through the

SA Crime Quarterly No. 48 • june 2014 17 refraction I show that such a policy decision not On a different route only risks repeating history in the short term but I would like to start by highlighting an irony. While also places the SAPS at risk of falling back into the many have condemned the brutality of current same purpose and patterns of policing as those that public order policing, and in so doing have tended informed its inception in the 19th century. From the to evoke the spectre of all-encompassing police very beginning, South African policing has been over- repression, the SAPS has in fact been disinvesting invested in public order policing to protect a partisan itself substantially from public order policing in the government and specific societal interests. past 15 years. This has mainly been done in order to deal with the pressure to reduce crime. In an effort to Secondly, I show that a policy focused on increasing increase its legitimacy with the people of South Africa the capacity of public order policing is likely to further as well as its administrative accountability, it has disappoint citizens’ wish for an effective police. I end allocated the bulk of its resources – both budgetary this article with an aspirational call – that if the SAPS and personnel – to ‘ordinary’ crime fighting. wishes to break these patterns of its long history and In 2000, under the government, which does not want to be misunderstood in its intention to was often accused of not taking crime seriously, serve the people, the service cannot hide behind the the police released the National Crime Combating rule of law, neutrality or questions of capacity, but has Strategy (NCCS).6 This self-assertive reaction of to be more explicitly partisan towards the citizens it the police to shift towards a results-driven crime serves. combating strategy was a way to show that they 7 This article is intended to stimulate thinking and were serious about crime. Soon after, in 2002, debate about political policing. Drawing on Brodeur,4 the dismantling of the Public Order Policing (POP) units began. First the POP units were turned into a and how Steinberg5 has recently applied Brodeur’s ‘reaction force’ of sorts, to be called on to respond idea of ‘high policing’, political policing can be to major crime operations such as bank robberies.8 explained as the explicit protection of government But the dismantling did not stop there. By 2007 the through the use of intelligence and extralegal force POP personnel were reduced by nearly two-thirds.9 against people challenging government from outside Officers were transferred to bolster daily police or from within. Political policing, however, is also work at station level. Those who remained in the the biased enforcement of , or the enforcement renamed Crime Combating Units, while nominally of laws that are biased against a certain group or still responsible for public order, were also in practice interest. In contrast to the idea of high policing, such re-deployed, more or less full time, to major crime- notions of political policing diffuse the questions of fighting operations.10

agency, conspiracy and intentionality in favour of a This left the public order police understaffed and more structural perspective. While in tension with undertrained, and unable to deal with the public each other, I would like to keep both notions in sight. dissatisfaction with a government failing to live up to expectations. In the light of history this change Aside from the insights offered into the policing of could be considered an unprecedented and domestic violence, this article is not based on original even a progressive move, since policing in South research but relies on secondary sources. While Africa before the end of apartheid was generally ethnographic research into the policing of protest characterised as being overused for crowd control would probably complicate the notion of political purposes and underused for crime-fighting purposes. policing, I use it here in a normative way to stress the In that era, even where the police concentrated on contrast with a form of policing that is relatively free responding to crime, the criminal offences often from direct political instrumentalism and that accepts served as yet another way to keep black South a constitutional democratic law as its primary source Africans in a subjected state (e.g. ). This of authority. bias was accentuated by the fact that police were

18 institute for security studies thinly spread, forcing difficult choices as to where to To leave no doubt about the role and methods of the deploy their resources.11 SAMR, it was promulgated under the Defence Act of 1912 instead of the Police Act of 1913. The SAMR Political policing in the past was finally absorbed into the SAP after World War II. From their inception in the 19th century, one of the By then, however, unrest had in any event become a primary roles of the police in South Africa, mounted phenomenon of urban areas rather than rural areas, and in paramilitary attire, was not to keep peace and the SAP had already taken over many internal among people but to police territory and suppress security tasks, such as the quelling of protests and 18 internal resistance to colonial rule.12 These colonial strikes. In fact, from its inception in 1913 the SAP was fully absorbed by such tasks. regiments of mounted riflemen – at least in the British territories of Natal and the Cape – followed the model Consider a year such as 1914, in which the SAP first of the Royal Irish Constabulary, which had a long helped to suppress a railway strike, which turned history and proven record of suppressing civil unrest into a general strike by white workers and was swiftly and political agitation.13 Prior to Union in 1910, there crushed by the police and military, acting with powers was also no single police force. Mounted regiments under martial law. In the same year the police were were complemented with a potpourri of other police involved in suppressing the De la Rey rebellion, forces, such as special police for key infrastructure: and, finally, the police helped with the conquest and railway police, private police for the mines, native occupation of German South West Africa. On the side administration police and town police. Each of of the police this drove a process of militarisation, the colonies had one such set of multiple police with a bias towards drill and weapons training and 19 forces. But even where there were ‘town’ police, the introduction of military ranks in 1919. By 1922 accountable to and paid by the respective town it had even become thinkable to use the police in combination with air force bombings to end a strike councils, like the one set up in Johannesburg at the by white workers.20 Still, the number of people killed turn of the previous century and which supposedly in those interventions pales by comparison with how subscribed to a more civilian outlook, police officers the police dealt with black resistance. In 1920 the were placed in service of the mining industries to SAP, led by the Commissioner himself, killed 200 forcefully manage their workforce.14 Three laws black people in an uprising in Bulhoek.21 deserve particular mention here: the liquor laws, gold laws and pass laws. Together, their enforcement led Meanwhile, where the police were trying to deal to the mass incarceration of an otherwise innocent with so-called ordinary crimes that threatened black population.15 white people’s lives and property in the growing and industrialising cities at the beginning of the With the forging of Union, the plan was to have 20th century, and which were rife, especially on a highly centralised, single police force. At least, the Witwatersrand, they were deeply caught up that was the fantasy of newly appointed Police in inefficiency. This was shaped especially by Commissioner Theodorus Truter and people close corrupt entanglements with the various gangs and to him who had the modernisation of the police at gangsters who – attracted by the unruly, male- 16 heart. Truter succeeded in centralising the force dominated capitalist precious metal business of early 17 with control located firmly in Pretoria. However, Johannesburg – populated the Reef.22 Also, the main the second aspect of the plan, to have only a single efforts of the Criminal Investigation Department (CID) police force, was thwarted by the government of the SAP were still focused on disciplining a mining (particularly the Ministry of Justice), which insisted workforce and the enforcement of the gold, liquor on keeping a dual system: the South African Police and pass laws.23 In fact, the ongoing raids on mining (SAP) for the burgeoning cities, and the South African compounds and black living quarters in the city by Mounted Riflemen (SAMR) for the countryside and to the specialised Liquor and Gold branches could be control ‘tribal rivalry’ and resistance to white rule. considered an everyday version of crowd control.

SA Crime Quarterly No. 48 • june 2014 19 Implausible as it might seem, police management of its ongoing political policing mission. But it was tried to maintain a language of modernisation also a consequence of sheer incompetence and and an aspiration towards professionalism and unpreparedness.29 The reaction of the police in independence by trying to secure better-educated the following months and years was to deal with recruits, by insisting on a civil police spirit, through this unpreparedness by increasing its riot police technological advances in the field of forensics, and manpower, and strengthening its chains of command by maintaining the principle of the use of minimum and protective measures for police officers.30 This force.24 However, these efforts only appeared in culminated in the highly militarised police of the pure form in the wishful language of commemorative 1980s, with very little capacity and will to respond to albums25 and the recommendations of various ordinary crime. Commissions of Inquiry (e.g. the 1913 Commission of Inquiry into the Witwatersrand Riots and the The desire for a strong state 1926 Water Commission). And while these might It is necessary to remember that the political bias in explain why a purely instrumental understanding of policing largely left black areas to their own devices in the police as the agent of dominant interests falls creating a means of safe living.31 This gap was filled short, the police force itself often failed to concede its at different times with different formations of informal highly compromised character and its fundamental justice. It was a form of self-rule that was sometimes role in political policing. This is evident in budgetary politically (locally) legitimate, but at other times highly priorities. Brewer shows that ‘[t]he proportion of the divisive in inter-generational and class conflicts. It police budget spent on detective services, a measure often got out of hand and turned from sanctioned of expenditure on civil police work, had fallen by a force to menace; sometimes it was initiated and third in the 1926/7 financial year compared to the even paid (or rather, underpaid) for by the state. 1914/15 financial year, while overall the police budget Sometimes it was reined in by the state. Mostly, 26 had doubled’. though, it was just ignored as a necessary if not And even where white middle-class citizens, who useful evil in a divide and rule policy.32 This normalised might have had some influence on what kind of the experience of a lack of security as public , police they wanted, expressed their unease about and of highly authoritarian and rather immediate armed police officers patrolling their area, such forms of punishment.33 liberal concerns were quickly overruled – with the Together with post-apartheid’s democratic promises consensus of these very citizens – when confronted of inclusion and new infrastructure, such as 27 with a growing urban under- and working class. community policing, to bring the police closer to the This structural constellation of bias toward crowd people,34, 35 this has produced a highly ambiguous control – in its exceptional form mainly directed at yearning for the force of the state, which can be white industrial strike action and Afrikaner rebellion, otherwise read as a yearning for a private relationship and in its mundane form mainly directed at a black with the state.36 The expectation is that policing working force – was at the root of the SAP from intervenes forcefully (not particularly constrained by its inception. It reproduced itself over the years in human rights) in one’s own favour and for one’s own different variations, strengths and proportions.28 protection.37

To mention one more important event in this long This is apparent, for example, in the policing of history: the 1976 student protest. Like domestic violence, where a call for the police is today, riot policing as it was called then had been often an expression of the desire for a protective in a kind of slumber. Political resistance had been but authoritative figure, who can at least match a quelled in the early 1960s (after Sharpeville), and husband’s violence and rein him in on behalf of the the previous years had been relatively quiet in terms wife or partner. But it also comes through in the of public protest. When the protest happened, policing of public protest. In fact, I would propose, police intervened brutally. This was partly the effect to put matters starkly, that public order policing

20 institute for security studies is not very different from, and just as protracted, incompetence that it translates into policing-against- as the policing of domestic violence. The violence the-people. itself is the result of a failure of communication and Either way, the intervention of the police mostly symptomatic of conditions of (gender) inequalities disappoints and in fact aggravates the situation.42 It and economic disempowerment. Most importantly, is not only that the police cannot solve the situation, it is the epiphenomenon of a structural situation, but that the very act of policing provokes retaliation. which the police alone cannot change. In many Protesters may feel violated and silenced, and the domestic violence cases, most women do not want sense of violence suffered is recast as a form of to get rid of their husbands,38 but simply want them political sacrifice,43 leading people into subsequent to behave differently. We could say the same about protests with the expectation that further sacrifice municipalities. It is mostly not the legitimacy of the might be necessary. If nothing else is solved, police government as such that is at stake, but rather how intervention will certainly only produce an increased things work, or not, that leads to protest and the need for intervention. involvement of the police. In the case of domestic violence, police intervention is often desired in the Making things worse hope that it will change the behaviour of the husband, at least in the moment, as the fight is happening.39 The ability of the police to aggravate the situation is often highly underestimated and misunderstood by When it comes to public protests, calls are those who order the police to intervene, and even sometimes made directly to the police to deal with a more so by the police themselves.44 There might particular case creating insecurity within a community. be some theoretical awareness that the police can Even when the call goes to other divisions of the local choose between a calming or escalatory approach, council, the police remain the most tangible visible between a minimum of force and a maximum of manifestation of the state, and become the frontline force approach.45 And to be fair, the police have been recipients of the message (of anger).40 Policing retrained in public order policing and this has been thus serves as a rallying point to hold government seen as one of the successes of transformation,46 accountable and make people’s suffering heard. at least before the public order police unit was This is important, as it marks a difference between dismantled. But the police are still used as if they are policing now and in the late apartheid era: there is outside of the conflict, and as if they are a surgical a demand for actual policing. While this demand instrument that can repair the situation by removing might be misplaced at times in its wish for violence against others, it remains a hope for an effective the trouble or quelling the spilling of blood. They are police service. I posit that this offers an opportunity not sufficiently seen as an integral element of the for the police to win over and build legitimacy among conflict itself. a populace calling for more security and a functioning A recent ethnographic description of protest against state. the hosting of the World Cup in Brazil remarks how Yet the manner in which this demand is responded quickly protesters’ sentiments regarding the police to leads to constant disappointment, and instead can turn. When the protest started, people mixed produces antagonism towards the police. As with their anti-FIFA messages with the message of ‘sem domestic violence, when the police intervene in violencia’ (without violence), hoping for a pact of public protest they often appear to be intervening solidarity with the police. But the police did not on behalf of someone else.41 This may be a real or respond to the call and instead used a pre-emptive imagined other. There is a spectrum of possibility display of might and violence, occasionally throwing between a police force instrumentalised to crush a stun grenades and preventing the demonstrators protest with well-known apartheid policing methods, from moving to the centre of town to deliver their and a police service ‘merely’ acting biased towards message. While the demonstration did not turn its own occupational rationale of self-defence and violent, the author powerfully describes a sense of the preservation of its authority, but with such disenchantment about what is politically possible:

SA Crime Quarterly No. 48 • june 2014 21 ‘While the chant “without violence” didn’t lose its The police cannot change inequality and poetry, it didn’t move me the way it did before unemployment, but in the case of domestic violence the interruption. The pact seemed to have been they can arrest a perpetrator, whose release the broken’.47 wife or partner may well demand the next day, without retaliating against her and not ignoring her So-called crowd psychology has provided substantial call the next time she seeks help. In the case of insights into these sometimes very subtle, but public protest it means explicitly – if not complicitly potentially highly consequential dynamics, described – choosing the side of the protestors and helping to here from an ethnographic perspective. It shows deliver the message. how police intervention is absolutely crucial to what happens at a gathering; how police have the An example of how this might work is taken from possibility of either giving people the sense that Waddington, who observed the negotiations between movement is possible or that a horizon is closed; and representatives of a far-left anarchist group and how police themselves are mainly responsible for Metropolitan Police officers in Britain during the early escalating hostility. An important point is that crowds 1990s. The declared aspiration of the protesters was are hardly ever homogeneous. There is always a to ‘tear down the fabric of capitalism’, to which the broad spectrum of people in a crowd, from those Superintendent conducting the meeting replied, ‘And 51 who are willing to police themselves, to people who how can we help you?’ are prepared to use violence.48 It is police action, Quo vadis, political policing? which confuses the acts of a few with the acts of a whole crowd, and which imagines the crowd as a There appears to be little chance of such a radical homogeneous (and violent) entity, that leads a crowd mind shift in the current approach to police to unite and halt communication. This was certainly intervention. Instead, like after 1976, the primary the case in Marikana, where the criminal acts of reaction to police failure to deal with public protest some tainted the whole group of demonstrators as has been the promise to bring back and build criminal.49 To avoid an escalation of violence – in the even more public order capacity than ever before. moment as much as over a long period of time – the Admittedly this will be done under a paradigm of 52 police need to always assume that the crowd is there the rule of law, but soon there are supposed to to deliver a message and that the primary role of the be 9 000 police officers ready to deal with public 53 police is to facilitate the deliverance of that message. protests all over the country. It is clear that since nothing is likely to change in terms of people’s Delivering the message is not simply a question of demands, the role of the police is pretty much set to sticking to the rule of law. As many people writing become that of an ongoing occupying army – unless, about the police have shown, the police work perhaps, they stay on their difficult course, seeking to according to a set of informal organisational rules, get their response to ordinary crime right, and making 50 while the law is often only evoked in retrospect. sure that protest does not increase because of their It is here in this informal operational realm that bias interventions. In this way they might learn to do the creeps in, often leading to disappointment because impossible: making protest effective, even if they demonstrators are being vilified. In the case of have to insist that they can only do their job if they domestic violence, to pick up the analogy again, put themselves behind the demand of the protesters, the police lose patience with women who do not for example by having the councillor receive a follow through with the law and the charges they memorandum. What we need is a complicit police, laid against their husbands or partners. But this is complicit not in the inertia, but complicit in bringing where the police have to anchor the bias to make about change. their intentions to serve the people explicit. It is in this informal realm, where neutrality doesn’t exist anyway, To comment on this article visit that the police have to make their choice. http://www.issafrica.org/sacq.php

22 institute for security studies Notes 15 Ibid. 1 An earlier version of this paper was commissioned and 16 Marius de Witt Dippenaar, The history of the South African presented at the ‘Public positions in history and policy’ series Police 1913–1988, Silverton: Promedia Publikasies, 1988. at the University of the Witwatersrand, http://wiser.wits. 17 This is a rather unusual development in comparison with ac.za/publicpositions. The author would like to thank the police forces globally, and not without consequences: it organisers of the event, Shireen Hassim, Keith Breckenridge means that police stations and all other units are primarily and Jonathan Klaaren, for encouraging her to take up this accountable to police headquarters rather than municipalities topic. (Breckenridge, Biometric state). It is very different, for 2 David Bruce, Marikana not Ramaphosa’s finest moment, Mail example, from what happened in other colonies such as & Guardian, 18 January 2013, http://mg.co.za/print/2013- India, where local elites collaborated with the police to define 01-18-00-marikana-not-ramaphosas-finest-moment what constituted criminal activity (Radhika Singha, Punished (accessed 9 June 2014); David Bruce, Wheels of justice by surveillance: policing ‘dangerousness’ in colonial India, turn slowly as political killings escalate, Mail & Guardian, 26 1872–1918, paper presented at the Centre for Historical October 2012, http://mg.co.za/print/2012-10-26-00-wheels- Studies, Jawaharlal Nehru University, New Delhi, 2013). of-justice-turn-slowly-as-political-killings-escalate (accessed Although decentralisation could exacerbate local despotism, 9 June 2014); David Bruce, Marikana: disastrous crowd it could also mean that police were much more accountable control led to mayhem, Mail & Guardian, 24 August 2012, to the locality in which they were operating. http://mg.co.za/print/2012-10-26-00-wheels-of-justice- 18 Brewer, Black and blue. turn-slowly-as-political-killings-escalate (accessed 9 June 19 Ibid. 2014); and Kerry Chance, Nqobile’s ‘sacrifice’: liberation and 20 Killingray, ‘A swift agent of government’. liberalization in democratic South Africa, paper presented at the Annual American Anthropologist Conference, Chicago, 21 Brewer, Black and blue, 100. November 2013. 22 Charles van Onselen, Who killed Meyer Hasenfus? Organized 3 David Bruce, Just singing and dancing, Community Agency crime, policing and informing on the Witwatersrand, 1902–8, for Social Enquiry, 2014; Independent Police Investigative History Workshop Journal 67 (2009), 1–22. Directorate (IPID), Annual report 2012–2013 (2013). 23 Breckenridge, Biometric state. 4 J Brodeur, High policing and low policing: remarks about the 24 Brewer, Black and blue. policing of political activities, Social Problems 30(5) (1983), 25 De Witt Dippenaar, The history of the South African Police. 507–20. 26 Brewer, Black and blue, 67. 5 Jonny Steinberg, Policing state power and the transition from 27 Ibid., 91. apartheid to democracy: a new perspective, African Affairs (2014). 28 Due to space limitations I tried to highlight the less-known early beginnings of political policing in South Africa. There 6 South African Police Service (SAPS), Strategic Plan for the are, of course, many other important moments that could South African Police 2005–2010, Pretoria: South African be discussed here, showing the kind of decisions the police Police Service, 2005. made in terms of choosing to protect a government and its 7 Ted Leggett, Just another miracle: a decade of crime and partisan interests versus building up the capacity for ordinary justice in democratic South Africa, Social Research, 72(3) crime fighting. Keith Shear discusses conflicts over political (2005), 581–604. loyalties within the police in the following articles: Keith 8 Johan Burger and Henri Boshoff, The state’s response to Shear, Colonel Coetzee’s war: loyalty, subversion and the crime and public security, Pretoria: Institute for Security South African Police, 1939–1945, South African Historical Studies (ISS), 2008, 15. Journal 65(2) (2013), 222–248; and Keith Shear, Tested 9 Bilkis Omar, SAPS’s costly restructuring: a review of public loyalties: police and politics in South Africa, 1939–63, Journal order policing capacity, Monograph 138, Pretoria: Institute of African History 53(2) (2012), 173–93. Other important for Security Studies, 2007, 25. moments are the militarisation of the police through its participation in South Africa’s counter-insurgency border 10 Sean Tait and Monique Marks, You strike a gathering, you wars. For more detail on these developments see, for strike a rock, SA Crime Quarterly 38 (December 2012), example, Gavin Cawthra, Brutal force: the apartheid war 15–22. machine, International Defence and Aid Fund, 1986; and 11 Killingray, ‘A swift agent of government’: air power in British Kenneth Grundy, The militarization of South African politics, Colonial Africa, 1916–1939, The Journal of African History Oxford: Oxford University Press, 1994. 25(4) (1984), 429–44; David Killingray, The maintenance of 29 Anthea Jeffery, Riot policing in perspective, Johannesburg: law and order in British Colonial Africa, African Affairs 85(340) South African Institute of Race Relations, 1991. (1986), 411–37. 30 Brewer, Black and blue. 12 John Brewer, Black and blue: policing in South Africa, New 31 The same analysis does not apply to the apartheid rule of York: Oxford University Press, 1994. coloured areas, where police played a much more crime 13 David Killingray, The maintenance of law and order in British control-oriented role, but in the process subjected coloured Colonial Africa. families, especially coloured men, to a carceral/reformatory 14 Keith Breckenridge, Biometric state: the global politics of regime. See Steffen Jensen, Gangs, politics and dignity in identification and surveillance in South Africa, 1850 to the Cape Town, Oxford, Johannesburg and Chicago: James present, Cambridge: Cambridge University Press, 2014. Currey, Wits Press and University of Chicago Press, 2009.

SA Crime Quarterly No. 48 • june 2014 23 32 Ray Abrahams, Vigilant citizens: vigilantism and the state, 46 Monique Marks, Transforming the robocops: changing police Hoboken: Wiley, 1998; Bruce Baker, Multi-choice policing in South Africa, Scottsville: University of KwaZulu-Natal in Africa, Uppsala: Nordiska Afrikainstitutet, 2008; Lars Press, 2005. Buur and Steffen Jensen, Introduction: Vigilantism and the 47 Susana Durão, Is nonviolent policing possible in Brazil?, policing of everyday life in South Africa, African Studies 63(2) Cultural Anthropology (20 December 2013), online edition, (2004), 39–52; Clive Glaser, Violent crime in South Africa: http://www.culanth.org/fieldsights/437-is-nonviolent- historical perspectives, South African Historical Journal 60(3) policing-possible-in-brazil (accessed 10 June 2014). (2008); Clive Glaser, Bo-Tsotsi: the youth gangs of Soweto, 48 Stephen Reicher et al., Knowledge-based public order 1935–1976, Social History of Africa Series, Oxford and Cape policing: principles and practice, Policing 1(4) (2007), Town: Heinemann, James Currey, David Philip, 2000; Gary 403–15; Von Holdt, Langa, Molapo et al., The smoke that Kynoch, We are fighting the world: the Marashea gangs in calls. South Africa, 1947–1999, Ohio and Durban: Ohio University Press and University of KwaZulu-Natal Press, 2005; Thomas 49 Bruce, Marikana not Ramaphosa’s finest moment. Kirsch and Thilo Grätz, Domesticating vigilantism in Africa, 50 Robert Reiner, The politics of the police, 4th ed, Oxford: Oxford: James Currey, 2010; Oxford University Press, 2010. 33 Kelly Gillespie, Myopic justice: ‘mob’ killings and the 51 P A J Waddington, Policing of public order: editorial, Policing surge in popular punishment, paper presented at the Wits 1(4) (2007), 375–79. Anthropology Seminar, Johannesburg, 20 March 2014. 52 Note that, according to a strict application of the rule of law, 34 Julia Hornberger, From General to Commissioner to General: most protests would be illegal as they rarely get the approval the state of popular policing in South Africa, Law and Social of the relevant municipality or councillor. Inquiry 38(3) (2013), 598–614; Julia Hornberger, Policing 53 , To protest is a democratic right, to protest and human rights: the meaning of violence and justice in violently is a criminal act, advert, The Star, 17 February 2014. everyday policing in Johannesburg, Law, Development and Globalization Series, London: Routledge, 2011. 35 Also see Gail Super’s article in this edition of SACQ. 36 Hylton White, A post-Fordist ethnicity – insecurity, authority and identity in South Africa, Anthropology Quarterly 85(2) (2012), 397–428. 37 Hornberger, Policing and human rights. 38 As this is a paper about public order policing, I will not go into too much detail on the complexities of domestic violence and, of course, that it not only happens among married heterosexual couples. 39 Antony Altbeker, The dirty work of democracy. A year on the streets with the SAPS, Johannesburg and Cape Town: Jonathan Ball Publishers, 2005; Julia Hornberger, ‘Ma- slaan-Pa dockets’: negotiations at the boundary between the private and the public, in Gorgio Blundo and Pierre-Yves Le Meur (eds), Governance of daily life in Africa, Leiden: Brill Press, 2009; Jonny Steinberg, Policing state power and the transition from apartheid to democracy. 40 We can also see this idea of development by proxy with regard to the recently held Khayelitsha Commission. The situation in Khayelitsha is about more than just policing, with unemployment and a lack of development also playing a role. 41 Karl von Holdt, Malose Langa, Sepetla Molapo et al., The smoke that calls: insurgent citizenship, collective violence and the struggle for a place in the new South Africa, CSVR and SWOP, 2011, http://www.csvr.org.za/docs/ thesmokethatcalls.pdf (accessed 8 June 2014). 42 Von Holdt, Langa, Molapo et al., The smoke that calls. 43 Chance, Nqobile’s ‘sacrifice’. 44 Donatella Della Porta & H Reiter, Policing protest: the control of mass demonstrations in Western democracies, Minneapolis: University of Minnesota Press, 1998. 45 Nathi Mthethwa, Remarks by the Minister of Police Nathi Mthethwa MP at the Public Order Policing Conference, SAPS, Burgers Park Hotel, Pretoria, 13 January 2014, http:// www.gov.za/speeches/view.php?sid=43343 (accessed 10 June 2014).

24 institute for security studies Unsustainable and unjust

Criminal justice policy and remand detention since 1994

Jean Redpath* [email protected] http://dx.doi.org/10.4314/sacq.v48i1.3

The ‘tough on crime’ approach embodied in bail and sentencing law has had a profound impact on the trends around remand detention, including prison overcrowding of such an extent that it is estimated to have contributed to an additional 8 500 natural deaths in custody. Ultimately the policies have led, in practice, to an ‘Alice in Wonderland’ effect: fewer people are being tried and sentenced, while more than ever are denied their freedom without ever being tried in a court of law.

Over the period 1995–1998 South Africa embarked person’s freedom was at stake.2 But in 1997 the CPA upon an unprecedented legislative programme. In was amended so that it explicitly provides in s50(6)(b) 1998 alone, more than 120 laws were passed by the that an arrested person is not entitled to be brought new democratic parliament. In the arena of criminal to court after hours.3 Bringing bail applications procedure and criminal law these laws were not in after hours was a common practice in magistrate’s the direction of the reforms suggested by South courts before 1998, and prior to 1994 the courts Africa’s Constitution and Bill of Rights, enacted on a number of occasions confirmed the right of in 1996; instead, they were intended to convey a an accused to bring a bail application within the 48 ‘tough on crime’ approach. In a short space of time hours envisaged by the then section 50; some went a number of protections for accused persons, many so far as to say there was a duty on the part of the of which had been developed by the courts during state to co-operate and make it possible for a bail apartheid to ameliorate the effects of unjust security application to take place.4 Commentators at the time detention laws, were simply swept away by legislative voiced their dissatisfaction at the change, noting: fiat, encompassed in amendments to the Criminal ‘The irony inherent in this reactionary measure is, of Procedure Act (CPA).1 This article seeks to describe course, striking: a procedural human right deemed and analyse the ‘tough on crime’ policy approach, under the old order through creative and enlightened and to assess its impact. judicial interpretation has been summarily taken away by decree of the new order.’5 The ‘tough on crime’ policy approach Protective limits on the length of time for which During the apartheid years it was accepted that a bail applications may be postponed for further bail application was a matter of urgency: after all, a investigation were undone in 1995.6 Section 50(7), which contained a time limit of a day on delaying bail * Jean Redpath is a researcher at the Community Law Centre applications for the purpose of further investigations, of the University of the Western Cape. She specialises in the 7 analysis of data informing criminal justice system law reform in was deleted and replaced, and subsequently African countries. tweaked by the Amendment Act 62 of 2000, which

SA Crime Quarterly No. 48 • june 2014 25 provides for the postponement of a bail application current circumstances of widespread violent crime.13 for seven days at a time if the court, inter alia, thinks The Court noted that ‘the subsection does not say it has insufficient information to make a decision on they must be circumstances above and beyond, bail, if the accused is going to be charged with a and generally different from those enumerated ... serious offence, or the court simply thinks it is in the an accused ... could establish the requirement by 8 interests of justice to do so. proving there are exceptional circumstances relating In addition to these procedural changes relating to to his or her emotional condition that render it in the when bail applications may be heard, a greater onus interests of justice that release on bail be ordered has been placed on the accused. The court hearing notwithstanding the gravity of the case’.14 the bail application must be satisfied that the interests It was also noted that ‘the amendment was intended of justice are served by release, whereas previously to make the obtaining of bail of accused persons who the court had to be satisfied that the interests are charged with serious offences more difficult. It of justice are served by continued detention.9 In was not meant to make the obtaining of bail by these relation to accused persons charged with serious persons impossible’.15 Unfortunately, the provisions offences listed in Schedule 6,10 such as premeditated seem to have ensured that the possibility of bail in murder and gang rape, bail has all but been ruled out. Section 60(11) places the onus on an accused relation to Schedule 6 offences is likelier among those 16 charged with such an offence to adduce evidence to with expensive legal representation; for the vast satisfy the court that exceptional circumstances exist, majority accused of serious crimes, release is highly which, in the interests of justice, permit release.11 unlikely.17 This is called a ‘reverse onus’ and implies that if an A 2008 study predicted that the combined impact accused charged with a Schedule 6 offence at the of these changes is ‘likely to be a significant delay bail application provides no evidence, or provides in the hearing of bail applications, an increase in unexceptional evidence in support of the contention postponements for further investigation, and a that the interests of justice will be served by his reduction in the number who are granted bail at first release, he will not be released on bail. appearance’.18 The study did in fact find evidence of In relation to Schedule 512 offences, which are these trends in three courts investigated.19 However, serious offences such as murder and rape that many crime-weary South Africans appeared to have not been aggravated by additional factors welcome these amendments to bail law, as many (such as premeditation in the case of murder), the believed at the time that ‘criminals have too many amendments require that ‘the accused be detained rights’.20 in custody until he or she is dealt with in accordance with the law, unless the accused, having been given In response to public perceptions of leniency in a reasonable opportunity to do so, adduces evidence sentencing,21 tough sentences were also introduced which satisfies the court that the interests of justice in 1997.22 Counter-intuitively termed ‘minimum permit his or her release’. This formulation is slightly sentencing’, the legislation prescribing tough less onerous than that applicable to Schedule 6 sentences for serious crime was a response to an offences. earlier Constitutional Court judgement that had found

23 The Constitutional Court found that the limitation the death penalty to be unconstitutional. At the inherent in s60(11) (exceptional circumstances time of this judgement, the public believed crime in 24 for Schedule 6 offences) on section 35(1)(f) of the South Africa had escalated and public sympathy Constitution, which provides that ‘everyone who was against the abolition of the death penalty.25 is arrested for allegedly committing an offence Consequently there was a need to demonstrate has the right to be released from detention if the that government was ‘tough on crime’, and thus interests of justice permit, subject to reasonable ‘minimum’ sentences of life imprisonment were conditions’, was reasonable and justifiable in our legislated for crimes that previously might have

26 institute for security studies incurred the death penalty. Other ‘minimums’ were Table 1.2: Prescribed sentences (section 51)31 also provided for. Minimums are applicable even in Penalty on: PART I PART II PART III PART IV relation to first offenders, unlike the ‘three strikes’ 1st offence life 15 years 10 years 5 years law applicable in some US and Australian states. 2nd offence life 20 years 15 years 7 years The minimum sentencing provisions commenced on 3rd or life 25 years 20 years 10 years 1 May 1998,26 and the initial period of their validity subsequent 27 was only two years. After two years the provisions offence were explicitly renewed by the President with the agreement of the legislature.28 These minimum sentencing provisions were renewed on a number At the time of the introduction of minimum sentences, of occasions, and almost ten years later the renewal only the high courts, which generally hear fewer than requirements were deleted, making minimum 1% of criminal cases, had the sentencing jurisdiction 29 sentencing permanent. A summary of the minimum to impose many of these sentences. Consequently, sentencing provisions and their applicable sentences soon after the minimum sentencing provisions came appears in the tables below. Their introduction into effect, the sentencing jurisdiction of the regional occasioned further amendments to the sentencing courts was extended to 15 years’ (from 10 years’) jurisdiction of the lower courts. imprisonment, and the district courts’ jurisdiction was extended to three years’ (from 12 months’) imprisonment.32 Table 1.1: Summary of minimum sentencing offences (Schedule 2)30 A messy period of almost a decade (1998–2007) followed, during which regional courts were Part I Part II Part III Part IV empowered to hear life imprisonment matters, but

Life Fifteen Ten years Five years had to refer them to the high courts for sentencing. years Incidentally, a parliamentary study found that in Some Murders not not All offences one in ten such cases the high court ended up aggravated covered in covered in in Schedule acquitting the accused, who had been found guilty murders, Part I Part I 1 of the in the regional court.33 Ultimately the regional courts such as pre- Criminal meditated Procedure were empowered in December 2007 to hand down murder Act, where sentences of life imprisonment in these matters.34 committed The automatic right of appeal that went with these with firearm sentences was legislatively removed – possibly Some Some Some 35 aggravated aggravated indecent unintentionally – in April 2010. rapes, such robbery assault as gang (including Some analysts predicted that this jurisdictional rape hijacking) change would sharply increase the number of people Some Some drug Some convicted and sentenced to prison, simply because aggravated dealing assault GBH the regional courts have the capacity to hear many terrorism more cases than the high courts. The next section offences reveals that the number of people handed down long Some firearms sentences has indeed increased – but not the total offences number convicted and sentenced year-on-year. Some white collar crime The impact of ‘tough on crime’ (including policy changes corruption) Terrorism The practical impact of the changed bail and offences not sentencing framework was borne most obviously in Part I by the Department of Correctional Services (DCS).

SA Crime Quarterly No. 48 • june 2014 27 This is immediately apparent in the figures for the Figure 2: Number of deaths due to natural causes total remand population by month. Between 1995 in prisons, 1998–201138 and 1996, after the first amendments, the number 1 800 of people held pre-trial at month end increased by 1 600 50%, from around 20 000 to 30 000 people. By the 1 400 1 200 end of April 1998 almost 43 000 people were held, 1 000 compared to the almost 18 000 held in May 1995 – a 800 staggering 138% increase in only three years. After 600 the 1998 amendments came into effect, there was a 400 further steep increase until April 2000, when a peak 200 0 of almost 60 000 people held pre-trial was reached. 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 In only five years the pre-trial population in prisons had tripled. are closer to 190 000 (largely because of the massive increase in remand inmates) there is closer to one Figure 1: Remand population in prisons as at death for every 110 inmates. In other words, a 35% month end, 1995–201236 increase in total population has more than doubled 70 000 March 1999 March 2000 the rate of natural death. Using this relationship, it can 60 000 50 000 be calculated that, had inmate populations remained 40 000 at around 140 000, some 8 500 natural deaths would 30 000 1997 Amendments probably not have occurred in the period 1998 to 20 000 39 1995 Amendments 2011. 10 000 0 Figure 3: Relationship between rate of natural

30/1/199530/1/199630/1/199730/1/199830/1/199930/1/200030/1/200130/1/200230/1/200330/1/200430/1/200530/1/200630/1/200730/1/200830/1/200930/1/201030/1/201130/1/2012 deaths per year and inmate population from 31 March 1998–201140

Since that peak, the pre-trial population has hovered 1 000 around the 50 000 mark, with some seasonal dips to 900 800 the 40 000 mark. 700 During the remand peak from 2000 to 2004, prisons 600 were bursting at the seams, holding 170 000 to 500 400 190 000 people, a large proportion of whom were 300 untried, in facilities designed for just over 100 000 200 people.37 Overcrowding leads to less than ideal 100

conditions of detention, including the spread of Natural deaths per 100 000 inmates 0 120 130 140 150 160 170 180 190 200 communicable diseases. Unsurprisingly, these (Thousands) conditions of overcrowding led to a steep increase in Inmate population the number of deaths from natural (i.e. not violent or accidental) causes. The trend in natural deaths is likely to have been Plotting the inmate population since 1995 in prisons influenced by a high prevalence of HIV and against the rate of natural deaths per 100 000 tuberculosis. Anti-retroviral roll-out in prisons only inmates shows that not only does the number of began in 2006 at three sites,41 just after the peak deaths increase as the inmate population grows, but in inmate population numbers over the 2003–2005 also the rate of death. At around a total population period. Official prison capacity by the end of February of 140 000, there is on average one death a year for 2011 was only 118 154 – yet at one point during this every 250 inmates. Where total inmate populations period the number incarcerated tipped 190 000.

28 institute for security studies Figure 4: Total inmate population, 1998–201042 The drivers of the remand population

200 000 What causes high remand populations? The 190 000 number of remand detainees on any particular day 180 000 170 000 is influenced by two trends – how many people 160 000 are admitted to remand, and how long each of 150 000 them remains in detention. What do the data say 140 000 about how many people were admitted to remand 130 000 detention?

2000/1 2001/2 2002/3 2003/4 2004/5 2005/6 2006/7 2007/8 2008/9 1998/99 2009/102010/112011/12 1999/2000 The legislative changes discussed above were likely to have increased the number of people denied bail and admitted to remand. If arrests had remained In response to excessive inmate numbers – see the constant or had increased, then the number admitted graph above – the DCS motivated for presidential to remand should have increased, and analysis of the ‘special remissions of sentences’, leading to the early data shows that admissions rose considerably during release of 33 972 sentenced prisoners during 2005.43 the initial period of the new laws. In 1995/1996 just In addition, consideration of parole44 at the earliest over 230 000 people were admitted on remand. This increased to almost 299 000 by the year 1999/2000 possible parole date45 has now become the norm.46 – in other words, four years later, 67 000 or 29% This is increasingly essential as prisoners with longer more people were admitted on remand than in sentences (in excess of ten years) continue to replace 1995/1996. Another two years later 311 013 were those with shorter sentences. By 2011 the number of admitted on remand. Subsequently, however, remand prisoners with sentences of more than ten years had admissions dropped to the point where in 2010/11 almost quadrupled, to more than 50 000. there were fewer such admissions than there had been in 1995/6. What accounts for this trend? Figure 5: Composition of the total prison population by sentence status, 1995, 2000, 2005 Figure 6: Number of people admitted on remand and 201147 (un-sentenced admissions) to prisons, 1995/6– 2010/1150 200 000 180 000 350 000 160 000 52 313 311 013 298 981 298 711 296 039 290 755 287 397 287 535

300 000 285 325 276 534

140 000 270 348 269 645 49 695 269 448 61 563 259 089 16 853 244 593 250 000 231 980 120 000 227 664 11 791 100 000 24 265 200 000 18 471 67 917 150 000 80 000 15 970 46 861 60 000 100 000 62 308 40 000 61 181 50 000 53 290 48 667 1995/1996 1996/1997 1997/1998 1998/1999 1999/2000 2000/2001 2001/2002 2002/2003 2003/2004 2004/2005 2005/2006 2006/2007 2007/2008 2008/2009 2009/2010 2010/2011 20 000 0 21 050 11 156 0 1995 2000 2005 2011

More than Two to Under Remand ten years ten years two years The question arises whether the drop in remand admissions down to 1995/6 levels is due to a drop Since 1994, imprisonment capacity has increased in the number of arrests, particularly priority crime by approximately 20 000, which is still not nearly arrests, which are more likely to result in a denial of enough.48 However, the DCS has limited control49 bail. This is not the case. Comparing 2002/3 – the over one of the key drivers of the size of the total peak of remand admissions – to 2010/11 shows inmate population – a high remand population, which a 55% increase in priority crime arrests (which are is around twice the size it was in 1995. more likely to result in denial of bail), from 444 738

SA Crime Quarterly No. 48 • june 2014 29 to 688 937.51 Consequently the drop in remand cells being used for prolonged remand detention admissions cannot be attributed to a drop in arrests. because ‘prisons are full’.53 Indeed, some prisons are holding more than double their approved capacity.54 Figure 7: Number of priority crime arrests, 2001/2– The 2013 White Paper on Corrections and the White 52 2012/13 Paper on Remand Detention, however, seek to affirm that after 5 March 2012 the holding of remand 900 000

806 298 detainees in police cells after first appearance is not 800 000 777 140 55 688 937 legal.

700 000 657 673 600 000 549 227 536 991 516 104 508 387 Using the 70% figure for 2002/3 (of priority arrests 500 000 449 352 445 779 444 738 400 000 converted to remand admission) as a benchmark 300 000 would suggest that a potential 250 000 people were 200 000 188 931 probably admitted to police cells rather than to prison 100 000 remand after first appearance in 2010/11. This is of 0 great concern, given that police cells do not have

2001/20022002/20032003/20042004/20052005/20062006/20072007/20082008/20092009/20102010/20112011/20122012/2013 facilities for the adequate care of detainees held for prolonged periods. Arrests continue to rise: in 2012/13 the SAPS reported 806 298 priority crime What has reduced is the extent to which such arrests arrests and a further 876 476 ‘other’ arrests. translate into remand admission into prisons. In 2002/3 the remand admissions figure was 70% of The fact that the remand population in prisons the priority crime arrests figure (in the previous year remains high, despite the drop in admissions to there were more remand admissions than priority prison on remand, must then relate to the duration crime arrests). By 2008/9 the ratio of remand arrests of remand detention. One of the theorised effects of had dropped to 53%; in 2010/11 it was only 33%. minimum sentencing for the pre-trial phase was that How can this be explained, given that the legislative persons accused of such offences would be loath framework in relation to bail remains strict? to plead guilty, given that the bar is now set so high on their potential punishment. This could lead to Figure 8: Remand admissions expressed as backlogs and general slowing of the system. Given percentage of priority crime arrests that such persons would highly likely be denied bail 180 under the bail amendments, they would also highly 160 157 likely be incarcerated awaiting trial for an extended 140 120 length of time. Their continued incarceration before 100 the commencement of trial could, it was theorised, % 80 70 67 lull the state into taking its time in preparing a case 62 60 52 57 53 47 41 against the accused. 40 33 20 In 1995, there were remand admissions of 0 230 000 and a remand population of around 20 000,

2001/2002 2002/2003 2003/2004 2004/2005 2005/2006 2006/2007 2007/2008 2008/2009 2009/2010 2010/2011 suggesting that the average duration of detention in 1995 must have been around one month. By 2000, admissions of almost 300 000 and a remand A possible explanation is that an increasing population of 60 000 suggests that the average proportion of people are being held for extended duration of detention must have doubled to around periods in police cells, rather than in prisons – often 2,4 months. In 2010/2011 there were 227 664 because prisons refuse to take any more: a number admissions but a population of around 46 500 – of oversight visits by national and provincial Members suggesting the average duration of detention has of Parliament over the last decade mention police remained at around 2,4 months.

30 institute for security studies The back-of-the-envelope ‘average duration’ Figure 10: Number of people held for more than calculations above provide a putative average of one year on remand, 2009–201257 the duration of detention. Averages are not the best measures of the ‘central tendency’ of a population 1 708 24+ that is asymmetrically distributed – in other words, months populations where there is a fixed minimum for the 2 470 measure at hand (in this case duration of detention 1 324 >18–24 months cannot be less than zero) and a maximum that can 1 782 increase in size indefinitely. The department has 1 406 therefore provided ‘snapshot’ figures of the time >15–18 months spent in remand at a particular date over the period 1 605

2009–2012. 1 874 >12–15 months 2 263 Figure 9: Number of people held for various durations on remand, 2009–201256 0 500 1 000 1 500 2 000 2 500

2009 2010 2011 2012 6 312 >12 months 8 120

2 634 Is the remand trend justified >9–12 months by court outcomes? 2 711 In short then, the data show that fewer people are 4 836 >6–9 being admitted on remand to prisons, but for much months 4 274 longer time periods. Can it be assumed that such long

9 489 pre-trial incarcerations on remand are ultimately justified >3–6 months 8 441 by eventual convictions? Over the initial time period after the legislative changes the number of people 26 206 <3 sentenced to imprisonment and admitted to prisons months 22 805 did indeed rise 24% from 1995/6 to 2001/2 (see Figure

0 5 000 10 000 15 000 20 000 25 000 7). This coincided with the peak in the size of the total prison population over the period thereafter until the 2009 2010 2011 2012 special remissions that occurred in 2005.

Figure 11: Number of sentenced people admitted to The number of people in custody on remand for Correctional Centres, 1995–2010 more than three months comprised more than half 243 115

of remand detainees as at March 2012. (Recall that 213 753

300 000 205 264 207 210 201 686 196 612 191 345 190 140 178 147 the putative average in 1995 was one month.) The 250 000 165 572 138 317 number in custody for more than a year comprised 200 000 101 767 100 864 99 526 89 917 almost 18% in 2012 (or one in six remand inmates), 150 000 80 660 whereas in 2009 this percentage was only 13% (one 100 000 in eight). Indeed, by March 2012 some 5% (or one 50 000

in 20) had spent more than two years in custody. 0 1995/1996 1996/1997 1997/1998 1998/1999 1999/2000 2000/2001 2001/2002 2002/2003 2003/2004 2004/2005 2005/2006 2006/2007 2007/2008 2008/2009 2009/2010 2010/2011 In other words, all the longer time categories have experienced growth over the period 2009 to 2012, while all the shorter time categories have reduced in size, suggesting a general and continued lengthening of the duration of remand detention over this time After the peak in 2001/2 there was a steady decrease period. in the number of sentenced admissions. Yearly

SA Crime Quarterly No. 48 • june 2014 31 remand admissions, by contrast, dropped below What has been driving the drop in sentenced their 1995/6 levels only in 2010/11, while sentenced admissions? Sentenced admissions are admissions admissions did so in 2002/3 and decreased of people who are convicted, and then sentenced further thereafter. Yet, despite the drop in remand to a term of imprisonment, rather than with a non- admissions, the remand population remains more custodial sentence. Has the number of convictions than double the size it was in 1995. dropped, or is it the extent to which sentences that Figure 12: Number of sentenced and remand include a term of imprisonment have dropped? admissions, 1995–2011 The National Prosecuting Authority Act, which

350 000 created the National Prosecuting Authority (NPA), 300 000 was promulgated in October 1998. Initially the newly 250 000 formed NPA reported data on the finalisation of cases 200 000 150 000 in the reporting period January to December; prior 100 000 to that the individual provincial Attorneys-General did 50 000 not report on their work in a uniform manner. The

0 1995/1996 1996/1997 1997/1998 1998/1999 1999/2000 2000/2001 2001/2002 2002/2003 2003/2004 2004/2005 2005/2006 2006/2007 2007/2008 2008/2009 2009/2010 2010/2011 2001/2 NPA Annual Report included data for 1999, 2000 and 2001 on the number of finalisations and the Sentenced Unsentenced conviction rate.58 admissions admissions According to these data, convictions increased sharply over this time period, by 55%. From 2002/3 In 1995/6 the 230 000 remand admissions were the reporting period changed to run from March to matched by 200 000 sentenced admissions; in other February each year.59 The further jump in convictions, words, there was an approximately 85% conversion comparing January to December 2001 with March of remand to sentenced imprisonment in 1995/6. Put 2002 to February 2003, of another 41% in a single differently, just over one person was sent to remand year suggests there may have been a further change for every person convicted and imprisoned in the in reporting practices that occurred at the same time, same year. By 2007/8 this had worsened to 31%; in that influenced the number of convictions recorded. 2010 the ratio was 35%. Almost three times as many Assuming there was no such change in reporting people were sent to remand as were convicted in the practices, the increase in convictions, comparing the last years for which data are available. In 2010/11, year January to December 1999 to the year March some 150 000 people were sent to prison on remand 2002 to February 2003, was a staggering 117%. who were not subsequently imprisoned as a result of a conviction in the same year. The ‘conversion rate’ Figure 14: Number of convictions, 1999–2001,60 is likely to be far worse if remand detention in police 2002/3 to 2012/1361 cells is taken into account. 350 000 Figure 13: Percentage of remand admissions 300 000 250 000 matched by sentenced admission 200 000 150 000 90 85 82 78 100 000 80 76 74 70 69 1999 2000 2001 70 2002/3 2003/4 2004/5 2005/6 2006/7 2007/8 2008/9 62 2010/11 2011/12 2012/13 60 60 % 60 53 50

40 37 36 37 35 31 From 2002/3, however, the trend changes

30 1995/1996 1996/1997 1997/1998 1998/1999 1999/2000 2000/2001 2001/2002 2002/2003 2003/2004 2004/2005 2005/2006 2006/2007 2007/2008 2008/2009 2009/2010 2010/2011 dramatically towards an overall decrease in the number of convictions. Consequently it appears that

32 institute for security studies the reduction in the number of sentenced admissions verdict after’.62 What is clear is that the number of is partly a result of the trend towards a reduction in people held on remand in prisons is decreasing, the the number of convictions apparent from 2002/3. time for which they are held on remand in prisons is increasing, and the likelihood that they will ever be Figure 15: Number of convictions, 2002/3–2012/13 sentenced to a term of imprisonment is decreasing. 340 000 330 000 Conclusion 320 000 310 000 The ‘tough on crime’ policy approach embodied 300 000 in the tightening of bail laws and lengthy minimum 290 000 sentences has had, over the long term, an 280 000 unanticipated impact. After an initial period in which 270 000 the DCS bore the brunt of predicted and massive 260 000 increases in the total prison population, there was a 250 000 subsequent stabilisation. 2002/3 2003/4 2004/5 2005/6 2006/7 2007/8 2008/9 2009/10 2010/11 2011/12 2012/13 Prior to stabilisation, the twin unsustainable bail and sentencing policies led to conditions of detention At the same time, however, there has been a resulting in more deaths from natural causes due to commensurate reduction in the extent to which overcrowding in just over a decade, than the number sentences of imprisonment accompany a guilty of death penalty deaths during the apartheid era.63 conviction. Over the period 1999 to 2001 there appear to have been more sentenced admissions As a result the criminal justice system developed than there were convictions. This may, as indicated methods to ameliorate the impact of these above, also be the result of how convictions are unsustainable policies. Some prisons refused to recorded. Looking at data from 2002/3 onward, there accept any more remand detainees, and detainees is a steady downward trend in the extent to which were then held at police stations. The full extent convictions are matched by sentenced admissions, to which this occurred and continues to occur, is from almost 60% to less than 30%. unclear.

Figure 16: Sentenced admissions as percentage of The criminal justice trends suggest that, in addition, total convictions the system has generally slowed down and cut back on the number of people it chooses to prosecute,64 70 the number it convicts, and the speed with which 60 it does so, leading to a reduction in the number of 50 people sentenced year-on-year. 40

% The sentenced prison population is increasingly 30 composed of those with longer sentences, but most 20 will be released on parole at the earliest possible 10 parole date. 0 In short, durations of remand detention have 2002/3 2003/4 2004/5 2005/6 2006/7 2007/8 2008/9 2009/10 2010/11 increased, convictions have decreased, an increasingly greater proportion of people are held on This suggests that convictions are increasingly remand than will ever be convicted, and sentences accompanied by non-custodial sentences – or are less likely than ever to contain a custodial component. alternatively that convicted people are being sentenced to time already served on remand – the The ‘tough on crime’ approach has in practice turned ‘Alice in Wonderland’ scenario: ‘sentence first, into ‘justice delayed and freedom denied’.

SA Crime Quarterly No. 48 • june 2014 33 To comment on this article visit to be released on bail at any stage preceding his or her http://www.issafrica.org/sacq.php conviction in respect of such offence, unless the court finds that it is in the interests of justice that he or she be detained in custody. After amendment, section 60(1) (a) reads: An Notes accused who is in custody in respect of an offence shall, 1 Criminal Procedure Second Amendment Act 1995 (Act 75 subject to the provisions of section 50 (6), be entitled to be of 1995); Criminal Procedure Second Amendment Act 1996 released on bail at any stage preceding his or her conviction (Act 85 of 1996); Criminal Procedure Amendment Act 1996 in respect of such offence, if the court is satisfied that the (Act 86 of 1996); Abolition of Restrictions on the Jurisdiction interests of justice so permit.’ [Own emphasis] of Courts Act 1996 (Act 88 of 1996); Criminal Procedure 10 The offences listed in Schedule 6 are: ‘Murder, when—(a) Amendment Act 1997 (Act 76 of 1997); Criminal Procedure it was planned or premeditated; (b) the victim was—(i) a Second Amendment Act 1997 (Act 85 of 1997); Criminal law enforcement officer performing his or her functions Law Amendment Act 1997 (Act 105 of 1997); Criminal as such, whether on duty or not, or a law enforcement Matters Amendment Act 1998 (Act 68 of 1998); Criminal officer who was killed by virtue of his or her holding such a Procedure Amendment Act 2001 (Act 17 of 2001); Criminal position; or (ii) a person who has given or was likely to give Procedure Second Amendment Act 2001 (Act 62 of 2001). material evidence with reference to any offence referred to 2 See cases cited in note 4 below. in Schedule 1; (c) the death of the victim was caused by 3 Criminal Procedure Act, as amended by the Criminal the accused in committing or attempting to commit or after Procedure Second Amendment Act 1997, Section 50(6)(b). having committed or having attempted to commit one of the following offences: (i) Rape; or (ii) robbery with aggravating 4 See Twayie v Minster van Justisie 1986 (2) SA 101 (O); S v circumstances; or (d) the offence was committed by a Du Preez 1991 (2) SACR 372 (Ck); Novick v Minister of Law person, group of persons or syndicate acting in the execution and Order 1993 (1) SACR 194 (W) 197. or furtherance of a common purpose or conspiracy. Rape— 5 J van der Berg, Bail: A practitioners’ guide, 2nd ed, Cape (a) when committed—(i) in circumstances where the victim Town: Juta 2001, 11. was raped more than once, whether by the accused or by 6 Criminal Procedure Second Amendment Act 1995 (Act 75 of any co-perpetrator or accomplice; (ii) by more than one 1995). person, where such persons acted in the execution or 7 Section 50(7) (now deleted): ‘If a person is arrested on furtherance of a common purpose or conspiracy; (iii) by a suspicion of having committed an offence but a charge person who is charged with having committed two or more has not been brought against him or her because further offences of rape; or (iv) by a person, knowing that he has investigation is needed to determine whether a charge may the acquired immune deficiency syndrome or the human be brought against him or her, the investigation in question immunodeficiency virus; (b) where the victim— (i) is a girl shall be completed as soon as it is reasonably possible under the age of 16 years; (ii) is a physically disabled woman and the person in question shall as soon as it is reasonably who, due to her physical disability, is rendered particularly possible thereafter, and in any event not later than the day vulnerable; or (iii) is a mentally ill woman as contemplated in after his or her arrest contemplated in subsections (1) and section 1 of the Mental Health Act 1973 (Act 18 of 1973); (2), be brought before an ordinary court of law to be charged (c) involving the infliction of grievous bodily harm. Robbery, and enabled to institute bail proceedings in accordance with involving— (a) the use by the accused or any co-perpetrators subsection (6) or be informed of the reason for his or her or participants of a firearm; (b) the infliction of grievous further detention, failing which he or she shall be released.’ bodily harm by the accused or any of the co-perpetrators or participants; or (c) the taking of a motor vehicle. Indecent 8 The full text of Section 50(6)(d): ‘The lower court before assault on a child under the age of 16 years, involving the which a person is brought in terms of this subsection, may infliction of grievous bodily harm. An offence referred to postpone any bail proceedings or bail application to any date in Schedule 5—(a) and the accused has previously been or court, for a period not exceeding seven days at a time, convicted of an offence referred to in Schedule 5 or this on the terms which the court may deem proper and which Schedule; or (b) which was allegedly committed whilst he or are not inconsistent with any provision of this Act, if— (i) she was released on bail in respect of an offence referred to the court is of the opinion that it has insufficient information in Schedule 5 or this Schedule.’ or evidence at its disposal to reach a decision on the bail application; (ii) the prosecutor informs the court that the 11 E du Toit, F J de Jager, A Paizes et al., Commentary on the matter has been or is going to be referred to an attorney- Criminal Procedure Act, 2007, 9–42. general for the issuing of a written confirmation referred to in 12 Treason. Murder. Attempted murder involving the infliction section 60 (11A); (iii) the prosecutor informs the court that the of grievous bodily harm. Rape. Any offence referred to in person is going to be charged with an offence referred to in Section 13 (f) of the Drugs and Drug Trafficking Act 1992 Schedule 6 and that the bail application is to be heard by a (Act 140 of 1992), if it is alleged that—(a) the value of the regional court: (iv) it appears to the court that it is necessary dependence-producing substance in question is more than to provide the State with a reasonable opportunity to (aa) R50 000,00; or (b) the value of the dependence-producing procure material evidence that may be lost if bail is granted; substance in question is more than R10 000,00 and that or (bb) perform the functions referred to in section 37; or (v) the offence was committed by a person, group of persons, it appears to the court that it is necessary in the interests of syndicate or any enterprise acting in the execution or justice to do so.’ furtherance of a common purpose or conspiracy; or (c) the 9 Prior to amendment, Section 60(1) (a) read as follows: ‘An offence was committed by any law enforcement officer. Any accused who is in custody in respect of an offence shall, offence relating to the dealing in or smuggling of ammunition, subject to the provisions of section 50 (6) and (7), be entitled firearms, explosives or armament, or the possession of

34 institute for security studies an automatic or semi-automatic firearm, explosives or 14 Dlamini v S; Dladla and others v S; S v Joubert; S v armament. Any offence in contravention of Section 36 of Schietekat [1999] JOL 4944 (CC) para. 75–76. the Arms and Ammunition Act 1969 (Act 75 of 1969), on 15 S v Jonas 1998 (2) SACR 677 (SEC) para. 679d–680e. account of being in possession of more than 1 000 rounds 16 Such as the bail application of Oscar Pistorious, in which a of ammunition intended for firing in an arm contemplated lengthy affidavit spoke to exceptional circumstances. in Section 39 (2) (a) (i) of that Act. Any offence relating to exchange control, extortion, , forgery, uttering, 17 A 2008 study in three large urban courts found that in excess of 80% of murder accused and 90% of rape accused were theft, or any offence referred to in Part 1 to 4, or Section denied bail. See V Karth et al., Between a rock and a hard 17, 20 or 21 (in so far as it relates to the aforementioned place: bail decisions in three South African courts, Open offences) of Chapter 2 of the Prevention and Combating of Society Foundation for South Africa, 2008. Corrupt Activities Act 2004—(a) involving amounts of more than R500 000,00; or (b) involving amounts of more than 18 Ibid. R100 000,00, if it is alleged that the offence was committed 19 Ibid. by a person, group of persons, syndicate or any enterprise 20 In a national representative survey conducted face to face acting in the execution or furtherance of a common purpose with 3 000 South Africans in November and December or conspiracy; or (c) if it is alleged that the offence was 1998, about 70% of South African respondents either agreed committed by any law enforcement officer—(i) involving or strongly agreed with the statement that ‘criminals have amounts of more than R10 000,00; or (ii) as a member too many rights’. Reality Check, South Africans’ views of the of a group of persons, syndicate or any enterprise acting new South Africa: a report on a national survey of the South in the execution or furtherance of a common purpose or African people, 1999, 1999. conspiracy. Indecent assault on a child under the age of 16 21 See M Shönteich, Sentencing in South Africa: public years. An offence referred to in Schedule 1— (a) and the perception and judicial process Paper 43, ISS, November accused has previously been convicted of an offence referred 1999. The ISS and the Institute for Human Rights and to in Schedule 1; or (b) which was allegedly committed Criminal Justice Studies at Technikon South Africa (TSA) whilst he or she was released on bail in respect of an offence conducted a survey among Eastern Cape residents in 1999 referred to in Schedule 1. to ascertain their attitudes to sentencing in South Africa. The 13 Dlamini v S; Dladla and others v S; S v Joubert; S v survey found almost 60% said that the courts are ‘much too Schietekat [1999] JOL 4944 (CC), para. 67–77: ‘[67] There lenient’. can be no quibble with Mr D’Oliveira’s submission that over 22 Criminal Law Amendment Act 1997 (Act 105 of 1997). the last few years our society has experienced a deplorable 23 S v Makwanyana & another 1995 (3) SA 391 (CC). level of violent crime, particularly murder, armed robbery, 24 Although serious crime had been increasing since the assault and rape, including sexual assault on children. Nor 1980s, the public perception of a ‘crime wave’ over the can there be any doubt that the effect of widespread violent period 1994–1997 is not supported by SAPS data: See crime is deeply destructive of the fabric of our society and M Schönteich & A Louw, Crime trends in South Africa 1985– that accordingly all steps that can reasonably be taken to 1998, Centre for the Study of Violence and Reconciliation curb violent crime must be taken. Mr D’Oliveira was correct (CSVR), June 1999. when he argued that it is against this background that we 25 A survey conducted by the Human Sciences Research should assess the provisions of s 60(11)(a). [68] Although Council (HSRC) in July 1996 found that 71% of the public the level of criminal activity is clearly a relevant and important were in favour of retention of the death penalty, while factor in the limitations exercise undertaken in respect of s 69% felt that criminals were treated too leniently by the 36, it is not the only factor relevant to that exercise. One courts. See HSRC media release, The death penalty must be careful to ensure that the alarming level of crime debate, 4 September 1996, http://www.hsrc.ac.za/ is not used to justify extensive and inappropriate invasions media/1996/9/19960904.html (accessed 3 June 2005). of individual rights. It is well established that s 36 requires a 26 Act assented to on 27 November 1997, commencing 13 court to counterpoise the purpose, effects and importance of November 1998; s51 operable from 1 May 1998. the infringing legislation on the one hand against the nature and importance of the right limited on the other. Parliament 27 Section 53(1) of the Act. enacted s 60(11)(a) with the clear purpose of deterring and 28 Section 53(2) of the Act. controlling serious crime, an indubitably important goal. Its 29 The Criminal Law (Sentencing) Amendment Act 2007 (Act 38 effect is to limit, to an appreciable extent, the right of an of 2007), Section 3; Criminal Law Amendment Act 1997 (Act arrested person to bail if the interests of justice permit. The 105 of 1997), deleted sections 53(1) and 53(2). question we need to answer is whether the extent of that 30 Criminal Law Amendment Act 1997 (Act 105 of 1997), limitation is justifiable. [69] In order to determine whether Schedule 2. the limitation is permissible in terms of s 36, it is necessary to consider whether the limitation would be considered 31 Ibid., Section 51. reasonable and justifiable in democratic societies based 32 Magistrates’ Courts Act 1944 (Act 32 of 1944) as amended on freedom equality and dignity. … [77] In conclusion, by the Magistrates Amendment Act 1998 (Act 66 of 1998), therefore, I am of the view that although the inclusion of the commencing 7 October 1998, Section 92(1)(a). requirement of “exceptional circumstances” in s 60(11)(a) 33 Over the period April 2005 to March 2007 some 2 418 limits the right enshrined in s 35(1)(f), it is a limitation which is minimum sentencing matters were referred to the High reasonable and justifiable in terms of s 36 of the Constitution Court for sentencing. The High Court acquitted 234 of in our current circumstances.’ these accused who had already been convicted in the

SA Crime Quarterly No. 48 • june 2014 35 Regional Court. Parliament of South Africa Research status-report-department-correctional (accessed 5 March Unit document, 31 July 2007, http://www.pmg.org.za/ 2014). docs/2007/071030research.pdf (accessed 2 March 2014). 47 The data for 1995–2005 was drawn from Chris Giffard and 34 Criminal Law (Sentencing) Amendment Act 2007 (Act 38 of Lukas Muntingh, The effect of sentencing on the size of the 2007). South African prison population, OSF-SA, 2006. The 2011 35 See Chake v State (824/2012) [2013] ZASCA 141 (30 data was obtained from the Department of Correctional September 2013). Services Management Information System report, 2011. 36 This chart was compiled by combining a spreadsheet 48 Department of Performance Monitoring and Evaluation, The covering the period 1995 to 2005 that incorporated monthly Presidency, Twenty-year review South Africa 1994–2014, data, originally made available to the author by the Office 114. of the Inspecting Judge for the preparation of a report on a 49 Section 49G of the Correctional Services Act and 63A minimum sentencing in 1997, with various MIS (Management of the Criminal Procedure Act are relevant. Section 63A Information System) reports provided to the Civil Society does grant the head of a correctional centre, under certain Prison Reform Initiative (CSPRI) by the Department of circumstances and with regard to certain crimes, the Correctional Services (DCS) since 2003. The last such report discretion to either seek the release of a remand detainee or was dated 28 February 2011. A data point for 2012 was to request amendment of the conditions of such a person’s obtained from the DCS Annual Report. bail. The head of the correctional centre may approach the 37 ISS, Crime Index 4(4) (2000); Office of the Inspecting Judge, relevant court if he/she is satisfied that the population is Annual report 2011–2012. reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical health or 38 Office of the Inspecting Judge, Annual report 2011–2012. safety of an accused where an accused has been granted 39 Some 7 280 deaths in 13 years would have been likely bail but remains in custody. The extent to which the provision over 1998–2011, if the prison population had remained at has been used in practice is unclear. It only applies to 140 000. Instead 15 778 deaths occurred. detainees who have been granted bail but remain in custody 40 This chart was compiled using data from the Judicial (presumably because bail cannot be paid). Section 49G of Inspectorate of Correction Services, Annual report 2011– the Correctional Services Act provides that that a remand 2012, figure 22, on the number of natural deaths over the detainee may not be detained for a period exceeding period 1998–2011, as well as total inmate population data, two years without such matter having been brought to usually reported at the end of February or March of the year the attention of the court concerned. In April 2014, DCS concerned. announced that 380 detainees ‘were no longer in remand detention’ as a result of this provision being put to use. 41 Grootvlei, Pietermaritzburg and Qalakabusha. Presentation to the Select Committee on Security and Constitutional 50 See note 22 above. Affairs, 13 September 2006, www.pmg.org.za/ 51 South African Police Service, Annual report 2002–2003 docs/2006/060913parole.ppt (accessed 5 March 2014). (Visible policing); and South African Police Service, Annual 42 See note to Figure 2 above. report 2010–2011 (Visible policing). 43 Department of Correctional Services, Report on Special 52 Source: ISS Crime Hub, http://www.issafrica.org/crimehub/ Remission 2005, 23 August 2005, www.pmg.org.za/ (accessed 10 April 2014). docs/2005/050823sishuba.ppt (accessed 5 March 2014). 53 See KwaZulu-Natal Legislature Community Safety 44 Parole is a manner of placement whereby an offender, and Liaison Committee, Report on targeted visits to subject to completion of a minimum period of sentence police stations in the Umzimkhulu area, 20, 23–25 May inside the correctional centre, and subject to certain 2005, 19, http://www.kznlegislature.gov.za/LinkClick. criteria being met, may be allowed to serve a part of his/ aspx?link=committees%2F23-25+May+2005+visit+to+police her sentence in the community. A person placed out on +stations+20.pdf&tabid=96&mid=717 (accessed 5 March parole will be placed under strict conditions and under the 2014): ‘Concerns: The refusal of the relevant prisons to supervision of a parole/ probation officer and will remain accept any more awaiting trial prisoners. These prisons are under supervision in the community until the sentence already as much as 200% overcrowded and cannot cope is completed in full. If he/she transgresses any of these with any extras. The consequence is that the holding cells in conditions, he/she may be arrested and returned to a the Police Station are overcrowded, putting extra pressure correctional centre to serve the remainder of the sentence. on the personnel.’ And at 22: ‘This is an issue which arose at many of the Police Stations, but was particularly noticeable 45 For most sentenced offenders (those serving between two during the visit to the Mehlomnyama Police Station. Police years and life imprisonment), the earliest parole date occurs have to grapple with the problem of awaiting trial prisoners when half the sentence has been served, in terms of Section who cannot be accommodated at the Port Shepstone 73(6)(a) of the Correctional Services Act 1998 (Act 111 of Prison. This raises issues such as the responsibility of Police 1998). For a life sentence, 25 years must be served, and Stations having to keep awaiting trial prisoners, which is sentences in terms of minimum sentencing require four-fifths. not their responsibility, but that of Correctional Services.’ 46 The percentage of eligible cases considered by parole See also Report of the Portfolio Committee on Police on its boards from April 2011 to end of December 2011 is 76,30%. oversight visit from 26–30 March 2012 to the following police See Department of Correctional Services, Status report stations in the North West Province, http://www.pmg.org. on case management committees, parole boards and za/files/doc/2013/comreports/130515pcpolicereport.htm correctional supervision, 13 March 2012, http://www.pmg. (accessed 5 March 2014); Report of the Portfolio Committee org.za/report/20120313-correctional-supervision-parole- on Police on its oversight visit from 23–27 January and 02

36 institute for security studies February 2012 to the following police stations in 2012,http://www.issafrica.org/pgcontent.php?UID=31594 Province, http://www.pmg.org.za/files/doc/2013/com (accessed 5 March 2014). reports/130515pcpolicereport2.htm (accessed 5 March 2014): ‘All the detainees were supposed to be in Polokwane prison and not in the station cells. The one who had been there the longest, had been there from January 2010. The reason given was that the prison was full.’ 54 For example, Johannesburg Medium B on 28 February 2011 held 249% of approved capacity; Mount Frere 245%; King William’s Town 254%. 55 Correctional Services Act 1998 (Act 111 of 1998), Section 5(2)(b) prohibits the detention after first appearance of detainees in police cells. According to the White Paper on Remand Detention, para. 4.3.2.5, ‘Prior to the implementation of section 5(2) (b) of the CSA, the SAPS kept a number of RDs in their police cells in terms of a bilateral agreement between the SAPS and the DCS regional offices. The above-mentioned section makes provision for the detention of inmates in a police cell for a period not exceeding seven (7) days if there is no correctional centre or RDF nearby. All the bilateral agreements for detention of RDs in police cells for longer than seven (7) days ceased to operate on 01 March 2012 as this was the official date set for the implementation of section 5(2)(b). The purpose of 5(2) (b) was to ensure that RDs are not kept for longer periods than necessary by the entity responsible for investigating their alleged offences which may lead to torture or inhumane treatment in the pursuit of an investigation.’ 56 Source: Department of Correctional Services. 57 Source: Department of Correctional Services. 58 National Prosecuting Authority of South Africa (NPA), Annual report 2001–2002. 59 Data for 2002–2003, 2003–2004, 2004–2005 and 2005– 2006 is reported on in the relevant annual reports of the NPA; NPA, Annual report 2005–2006 is available at http://www. npa.gov.za/UploadedFiles/NPA%20Annual%20Report%20 2005_2006.pdf (accessed 5 March 2014). 60 NPA, Annual report 2001–2002, annexures B and D, 15, 17. The number for 1999 and 2000 excludes High Court convictions. The number for 2001 includes High Court convictions. The convictions are derived by multiplying the percentage guilty by the total finalised. 61 The red line shows data reported by the Department of Performance Monitoring and Evaluation, Twenty-year review, 143. The blue shows data sourced from individual annual reports of the NPA. 62 Lewis Carroll, Alice’s Adventures in Wonderland, London: Macmillan,1865, Chapter 12: ‘“Let the jury consider their verdict,” the King said, for about the twentieth time that day. “No, no!” said the Queen. “Sentence first – verdict afterwards.”’ 63 The number executed during the apartheid era is estimated at approximately 4 000. Approximately 8 500 additional deaths (i.e. 8 500 more than would have been the case had usual occupancy levels prevailed) are calculated to have occurred during the worst period of overcrowding. 64 This author has written extensively in an ISS monograph on the NPA’s tendency not to prosecute and wide interpretation of its discretion not to prosecute. See J Redpath, Failing to prosecute?, Monograph 186, Institute for Security Studies,

SA Crime Quarterly No. 48 • june 2014 37

Looking back

Insider views on the Judicial Inspectorate for Correctional Services

Chloë McGrath and Elrena van der Spuy* [email protected] [email protected] http://dx.doi.org/10.4314/sacq.v48i1.4

The establishment of a constitutional democracy in South Africa necessitated widespread institutional reforms across state sectors. A key feature of such reforms was the emphasis on oversight and accountability as illustrated in reform endeavours pursued in the South African Police Service, courts and prisons. One such oversight mechanism – the Judicial Inspectorate for Correctional Services (JICS) – is the subject of this article. Drawing on qualitative interviews with people closely involved with the JICS since 1998, this article presents ‘insider views’ regarding the JICS. We conclude with incumbents’ views on the effectiveness of the JICS.1

In brief: South African prisons years of collecting evidence, the Commission of Inquiry into Alleged Incidents of Violence or Under apartheid, South African prisons bore Intimidation in the Department of Correctional the imprint of racialised and repressive rule. The Services (the Jali Commission) declared that the opportunity for a fundamental re-think of the policy department was ‘arguably no longer governable’.3 framework had to await the establishment of a The report highlighted a wide range of ailments: constitutional democracy. Bold efforts at redesigning widespread patterns of corruption in the procurement the system of incarceration were put forward, but of goods and services and in appointments, uneven implementation has diluted many of the administrative ineptitude, a routinisation of abuse visions set out on paper. Twenty years into the new of inmates, widespread sexual violence among dispensation, South African prisons continue to inmates, gangsterism,4 endemic overcrowding,5 and confront a mix of structural fault lines, bureaucratic departmental capture by the Police and Prisons Civil intransigence, resource constraints and a measure of Rights Union (POPCRU). political indifference to the plight of prisoners.2 At present the DCS has the capacity to house In 2001 the Parliamentary Portfolio Committee for 118 441 inmates across 242 correctional facilities.6 Correctional Services called for an independent The inmate population has long exceeded capacity. inquiry in the Department of Correctional Services The current inmate population of 150 608 shows (DCS) on issues of corruption. In 2006, after five an overcrowding rate of 127%.7 Overcrowding has significantly contributed to poor prison conditions

* Elrena van der Spuy is attached to the Centre of Criminology, and human rights standards are frequently infringed Faculty of Law at the University of Cape Town. Chloë McGrath as a result of the burgeoning numbers of inmates.8 In was a researcher attached to the Centre of Criminology in 2013 and has been awarded a Fulbright scholarship for post-graduate 2013, pre-trial persons constituted 32% of the total studies from August 2014 onwards. incarcerated population.9

SA Crime Quarterly No. 48 • june 2014 39 In brief: the Judicial Inspectorate the Head of the Parliamentary Portfolio Committee for Correctional Services for the Department of Correctional Services,17 and three research experts.18 The choice of participants The Judicial Inspectorate for Correctional Services proceeded via purposive sampling so as to include (JICS) was established in 1998 and became a fully all six Inspecting Judges who served terms between functioning office in 2000. The office is headed up by 1999 and 2013, and five others who fulfilled key an Inspecting Judge (IJ), who is assisted by a Chief roles in the design and operation of the JICS. Three Executive Officer (CEO), under whom are three units: researchers of prisons provided informed comment the support services directorate, the legal services on prison reform. The face-to-face interviews of directorate, and the management regions directorate. approximately two hours duration each were audio The CEO must appoint an Independent Correctional recorded and transcribed during the second half Centre Visitor (ICCV) for each correctional facility. of 2013. All interviewees consented to having their The role of the ICCV is to regularly visit correctional interviews archived in an open access resource. centres, interview inmates and record complaints, and attempt to resolve complaints with the DCS In the analysis of the interview material we made where possible, submitting unresolved complaints to use of a thematic checklist based on the themes the IJ and writing monthly reports to be submitted explored in the interviews. The themes included: to the IJ’s office.10 Visitors Committees (VC) are then individual pathways to the Judicial Inspectorate;19 key established to deal with unresolved complaints, features of South African prisons past and present; schedule visits to correctional facilities, and engage core components of the JICS; key moments in the with community leaders. The total expenditure of evolution of the JICS; challenges relating to the the JICS for the 2012/3 year was R31 321 506.67. management of relations and establishing networks; In the 2012/13 year, the ICCVs dealt with 530 183 and views on the contribution of the JICS to the complaints across 242 correctional centres.11 democratic administration of prisons.20

Four key pieces of research12 have evaluated both Key features of prisons past the necessity for and the efficacy of the JICS. While in and present agreement that an independent watchdog to provide We asked JICS incumbents to reflect on key features oversight in South Africa’s correctional centres is of prisons inherited from the past at the point that absolutely necessary, the research has raised serious reconstruction got underway. The responses served concerns about its functional independence and its as a reminder of a deeply racialised system, managed lack of power to enforce recommendations. While the JICS publishes the number of complaints, it does along para-military lines, beset by overcrowding and not indicate whether these complaints are resolved. overseen by extremely limited forms of oversight. Furthermore, although the JICS has been highly Prior to the 1990s, racial segregation in prisons was critical of the DCS, its recommendations and findings prescribed in legislation and enforced throughout the have been largely disregarded by the DCS. country.21 One of our interviewees, a former political How do those situated at the upper echelons of the detainee, described it as follows: JICS reflect on the mandate, role, achievements and Prior to 1994 of course the first thing was that challenges of this oversight mechanism? there was apartheid in prisons. It was very strictly applied. Even the police was more kind of Research methods integrated. In the prison apparatus itself, they were This study combined elements of oral history very strict. My memory was that all white warders methodology with in-depth interviews. The group outranked all black warders, no matter what levels of 15 respondents included two drafters of the they were at. There were no black warders in my legislation13 in terms of which the JICS was white prison. White prisons had beds. At least established; six Inspecting Judges,14 a former they had mattresses and they had blankets. Black Inspector,15 a former Director and a current CEO,16 prisoners had … well ... not much.22

40 institute for security studies The prison service itself was an extremely Several of the respondents recalled human rights hierarchical, indeed quasi-military institution. The abuses inflicted on political detainees from the rank structure was modelled on that of an army, and 1960s onwards. These personal experiences a coercive top-down spirit pervaded the nation’s during incarceration shaped a deep commitment to prisons. Judge Nathan Erasmus observed that this oversight and accountability among them. As Albert legacy of militarism ‘was a force to be reckoned with’ Fritz put it: 23 as prison reform got underway. We always had the theory that the reason why the Judge John Trengove, the first Inspecting Judge, Mandela regime was so serious about this piece commented on the horrendous conditions of inmates of legislation and specially the part that deals when he took up office as follows: ‘I was shocked with the Judicial Inspectorate was because they when I became the Inspecting Judge, with the experienced prison life. They know exactly what it conditions in which people were being held. You was and what conditions were on Robben Island had cells which were built and had the facilities to and they really wanted to get some mechanism that was going to be effective.29 take about, say, 18 prisoners … where they were 24 crammed and had about 60.’ The birth of the Judicial Inspectorate Judge Deon van Zyl commented on his own earlier for Correctional Services experience: ‘In the old dispensation the conditions From 1993 onwards, the courts and politicians, with were really not good. Already in those early days, on a cohort of progressive advisers, began to propose circuit courts I visited prisons. It was quite obvious sweeping changes regarding incarceration. A ground- that the cells were hopelessly overcrowded. That’s breaking court case, Minister of Justice v Hofmeyr,30 not something of the modern times, that’s something was the prelude to a human rights regime that that goes back as far as prisons are concerned.’25 included the idea that ‘persons incarcerated in prison Prior to the introduction of the Bill of Rights and a retain all their personal rights save those abridged or 31 democratic South Africa, some informal oversight proscribed by law’. mechanisms for the treatment of incarcerated The Interim Constitution explicitly recognised a persons were in place. In 1964, for example, the prisoner’s positive rights.32 These rights were later International Red Cross (ICRC) was invited to visit entrenched in the Constitution of the Republic of South African prisons, and conducted inspections South Africa of 1996. The idea of an independent across the country, but the report, as is the practice oversight mechanism for the correctional services of the ICRC, was not made public.26 Furthermore, arose when the Penal Reform Lobby Group (PRLG), the Prison Regulations of the Republic of South a conglomeration of civil society lobby groups Africa extended prison visiting rights to all members involved in prison reform, spoke out strongly on of parliament regardless of political persuasion, and the inadequacy of a 1994 White Paper issued by provided access to judges of the Supreme Court to the prisons department.33 The PRLG argued for any correctional facility in the country. Magistrates an oversight mechanism and pointed out that, were given access to prisons within their jurisdiction. without it, the government would be in breach not Judge Hannes Fagan took this duty seriously: only of the principles set out in the Constitution ‘Whenever you went on circuit, you always went to but also of Principle 29(1) of the Principles for the the prisons … it was the duty of the judge to go and Protection of all Persons under any form of Detention visit prisons … detainees felt that they had nobody or Imprisonment, and Rules 55 and 35(2) of the to talk to and they couldn’t report to anybody.’27 In UN Standard Minimum Rules For the Treatment of Prisoners.34 contrast, Judge Vuka Tshabalala reported that in his experience judges on the Natal Bench were Dirk Van Zyl Smit, an academic who had published effectively dissuaded from undertaking such visits prolifically on prison law and practice in South due to concerns for their safety.28 Africa since 1982, was invited by the Commissioner

SA Crime Quarterly No. 48 • june 2014 41 of Correctional Services to advise on the new Inspecting Judge, the CEO, ICCV and VC, and its Act. Alongside Van Zyl Smit, drafters Judge Mark electronic systems of recording and analysing data. Kumleben and Advocate Neil Roussouw considered The Inspecting Judge the models of independent oversight mechanisms in the prison systems of England and Western The Judicial Inspectorate is headed by a judge, who Australia.35 must be either a Judge of the High Court in active service, or a retired judge. In practice the Minister Van Zyl Smit recounted that the advisers considered of Correctional Services nominates the Inspecting that the English model was most appropriate for the Judge to the president, who then makes the final South African context, but proposed two changes. appointment.39 Due to the recent creation of the They argued that a judge should be the head of the institution, based solely on the ‘independence and position of CEO to replace the former role of the integrity that judges are recognised to have in South director, most participants did not comment at length Africa’.36 In the British system there is both a Prison about the impact of the CEO. However, it is clear Ombudsman and an Inspector of Prisons. It was from the data that the administrative function of the decided that in the light of resource constraints, these director and CEO within the JICS has played a critical should be combined in the single role of the judge role in operationalising the statutory design of the within the Inspectorate. The inclusion of ‘corrupt and Judicial Inspectorate. dishonest practices’ in the mandate was due to the Not all participants agreed that it was necessary drafters’ conviction that the two were inextricably for a judge to head up the Judicial Inspectorate, linked. but there was consensus that the status afforded The JICS was established under section 25 of the to judges in South Africa was useful in securing Amendment Act 102 of 1997 of the Correctional the statutory endorsed independence (albeit of Services Act 111 of 1959. The Inspectorate was a limited kind) of the Inspectorate. As a former formally established on 1 June 1998, with Judge Inspector Adam Carelse put it, the Inspecting John Trengove as the first Inspecting Judge. The Judge brought ‘independence’ and the notion Judicial Inspectorate is governed by the provisions that ‘one must account for one’s actions’. Other in Sections 84 to 94 of the Amendment Act. interviewees commented that in the early phase of These sections were promulgated on 8 February the Inspectorate’s establishment, the position of the 1999, according to the proclamation issued by the judge carried political clout and social prestige. For President as provided for in section 138 of the Act.37 Judge Nathan Erasmus the immunity of his position as a judge and the security of a lifetime appointment The original mandate of the Inspectorate stated: meant that an adversarial approach could be taken The Judicial Inspectorate of prisons is an when necessary. Judge James Yekiso questioned independent office under the control of the the reliance on retired judges and suggested that the Inspecting Judge … The object of the Judicial JICS had to become attractive to judges in active Inspectorate is to facilitate the inspection of prisons service. Others again insisted that the Inspecting in order that the Inspecting Judge may report Judge was only as good as his or her commitment to on the treatment of prisoners in prisons and on prison reform and the protection of the human rights conditions and any corrupt or dishonest practices of inmates. in prisons.38 Independent Correctional Centre Visitors

Critical components of the Judicial There was broad consensus among those Inspectorate interviewed that the Independent Correctional Centre Interviewees were asked about the importance Visitor unit is a critical component of the Judicial of various components of the JICS relating to the Inspectorate. The role of the ICCV, as set out in the effectiveness of the oversight body. They agreed Act (S. 93), is to deal with prisoners’ complaints by that the critical components of the JICS were the conducting regular visits to the prison, interviewing

42 institute for security studies prisoners in private, recording complaints in an rights abuses.43 For another interviewee, the small official diary and monitoring their progression through contribution that individual ICCVs could make to the reporting system, and discussing complaints secure, for example, an extra blanket for an inmate, with the Head of Prison or another internal official should not be scoffed at. As CEO Adam Carelse put with the intent of resolving complaints internally it: ‘Now, blankets may sound very petty, but if you where possible. Thus, the ICCV is a critical cog were with me last week in the Free State and it’s in the system designed according to the principle three degrees, and you sleep under one grey blanket, of procedural justice. It functions via Visitors it changes who you are … and in a centre, there’s no Committees (VC), consisting of independent persons one to go to beside the ICCV to ensure that you get from particular areas, which are established by the that blanket.’44 Inspecting Judge. The committees consist of visitors Electronic systems from the relevant area.40 The purpose of the VC is to address unresolved complaints that have been Over the past 20 years of criminal justice system reported to the ICCVs with the intention of bringing reform there has been a considerable investment resolution, and to submit reports with complaints in the modernisation of information systems. In that the committee has been unable to resolve to the 2001 the Judicial Inspectorate piloted an electronic Inspecting Judge. reporting system. The system was designed to be

The effectiveness of the lay visitor scheme, designed the main portal through which ICCVs and Heads of 45 with the notion of community involvement in mind, is Prisons submitted reports to the Inspecting Judge. dependent on a range of factors. Viewed collectively, The system was linked to cell phones carried by interviewees emphasised the importance of selection, the ICCVs and other JICS staff to enable more the speedy appointment of ‘suitable’ lay persons, efficient communication. Furthermore, the system proper training, adequate resourcing, and ongoing was programmed to alert members of staff when monitoring of visitors at local and regional levels. reports were submitted to the JICS concerning On these issues respondents concurred with the deaths of inmates, as well as other mandatory research findings of external assessments of the reporting incidents such as segregation and the use 46 ICCV scheme.41 There was general agreement that of mechanical restraints. In addition to creating there was much room for improvement to all of these an electronic reporting portal, the new IT system aspects. Chronic problems existed around vacancies, also included an automated system for appointing further exacerbated by staff turnover. Above all, it was ICCVs, which would, according to Gideon Morris, emphasised that the effectiveness of an individual ‘ensure that the system will run independent of the visitor is largely determined by his or her commitment personalities’ and thus ‘eliminate the incidences of 47 to the human rights of prisoners. As one interviewee corruption and nepotism’. put it: ‘If the applicant is a mere job seeker, and However, ten years later the system has not been someone who sees this as an opportunity, as a updated. The website that was launched in 2002 stepping stone to something else, then you’re not remains the same, and the efficiency of the system 42 going to get that commitment.’ has been significantly diminished. More tellingly, Did ICCVs make a difference to the lives of both the website and the domain of the JICS are still inmates? Here the views differed. Some preferred hosted by the DCS. to acknowledge the potential embedded within Changes in the mandate and the system of bottom-up oversight, provided that role of the JICS issues bedevilling selection through to training and monitoring are addressed. Others again had a The mandate of the Judicial Inspectorate as set out more pragmatic approach – the ‘mere presence’ in the Act was changed almost immediately after of ICCVs had a ‘restraining’ influence, creating an the Inspectorate was officially established. At the awareness that ‘big brother’ is watching, which in request of Judge Fagan, the Act was amended in itself may act as a deterrent to perpetrators of human 2001, and the clause concerning ‘corruption and

SA Crime Quarterly No. 48 • june 2014 43 dishonest practices in prisons’ was removed.48 The Commission. Gideon Morris recalls that the JICS reasons for removing the corruption clause, set out was given ‘the first bite at the apple’ to investigate in the Annual Report, were that the JICS lacked the allegations but that Judge Fagan said, ‘We’ve got so capacity to track corruption and that the investigation much work to do, we don’t have the capacity. I don’t of corruption would compromise relations between want to get involved in that.’52 correctional officials and JICS staff. It was argued The elusive search for independence that, given these concerns, corruption should be left to an internal unit of the DCS itself. A second issue of importance in the evolution of the Judicial Inspectorate relates to its independence. Views on the removal of This matter has been at the centre of the civil society the corruption clause debate. Respondents in this study agreed that the The removal of the corruption clause has been JICS is not functionally independent of the DCS. controversial, not only in scholarly assessments but Financial dependence on the DCS constituted a also within the JICS. The decision to adopt a ‘narrow particular hurdle. According to Judge Trengove, ‘as interpretation’ of its mandate has been criticised as far as the prison department was concerned we were disregarding the intimate ‘link between corruption dependent on them for our finance ... we had to get (i.e. governance) and the treatment of prisoners our money from them.’53 (i.e. human rights)’.49 The original drafters of the Act Bureaucratisation of systems who were interviewed insisted that the inclusion of and processes the corruption clause was not an afterthought but a calculated measure to remedy what they perceived to Lastly, a third issue relates to the inevitable but be an omission in the British system of oversight.50 insidious process of bureaucratisation. The routine activities of the foot soldiers (in this instance the Interviewees had divergent views on whether ICCVs recording and reporting complaints) can corruption should have been retained within the so easily come down to a ticking of boxes on mandate. There was, however, agreement that the standardised templates, which are then fed into the Judicial Inspectorate lacked the capacity to deal administrative machinery of the complaints system. with corruption. Judge John Trengove, for example, More importantly, as interviewees pointed out, lay acknowledged that while he was acutely aware of visitors find it immensely difficult to maintain working corruption being rife throughout the ranks of the relationships with correctional officials and at the DCS, limited capacity left him with ‘tied hands’. same time remain independent in any real sense. It Others again emphasised that the very idea of is the problem of ‘capture’ that is at stake here.54 As investigating corruption was also an ‘uncomfortable’ Fritz put it, ‘too quickly the independent visitors also one as it was bound to strain the relationship become institutionalised like the warders’.55 between the JICS and DCS. As another interviewee argued: Managing relationships – external In Correctional Services the allegations of and internal corruption went to all the way to the top … The legal mandate of the JICS tells us very little how do you investigate and maintain a working about its actual operation. Key social actors (the relationship? It’s very difficult. When you deal with Inspecting Judge, the Minister, the Commissioner lower cases of soft corruption, it’s easy. But when and senior personnel of the DCS together with heads it goes up the hierarchy … and then tomorrow you of prisons, the Parliamentary Portfolio Committee have to ask the same people to get your budget. and civil society) need to create working relationships It’s not practical.51 conducive to the realisation of institutional objectives. As it turned out, various scandals relating to From the interviews it became apparent that along corruption made public headlines and then the way different styles of engagement (more or less culminated in the establishment in 2001 of the Jali adversarial, more or less cooperative) emerged in

44 institute for security studies response to situational dynamics and the individual associated with the Inspecting Judge was considered personalities involved. a critical factor. Making inroads necessitated cooperative strategies, but in other instances the Three sets of relationships were mentioned by need for keeping a respectable distance between the interviewees. The explicit political relationships JICS and the DCS required something different. Early involve the JICS and the Minister, the JICS and the on, recalled one interviewee, a cadre of new leaders upper echelons of the DCS, and the JICS and the within the DCS wanted too close a relationship with Portfolio Committee. The bureaucratic/administrative the JICS. They were eager for the JICS to assist with relationships are primarily between the JICS and the development of departmental policy, training and prison management at regional and local levels, and developing ‘appropriate’ budgets. But involvement within the JICS between the Inspecting Judge, the in operational matters had to be resisted so as to CEO and the ICCVs on the ground. Thirdly, there are protect the perceived independence of the JICS. the social relationships between the JICS and the wider public, which respondents also commented Making unannounced prison visits was a moot on as they reflected on the need for establishing point among those interviewed. Some thought it legitimacy. was merely a matter of courtesy to announce visits beforehand. As one Inspecting Judge put it: ‘I just Respondents stated that in the early phase of state regarded it as a courtesy. For instance I mean I know reconstruction the JICS could count on the political that they want to take a little trouble, to make sure support of the new government more broadly, and that there is some tea and cookies and samosas or the Ministry of Correctional Services more particularly. whatever the case may be.’58 Others again felt that At the time, widespread support for the ethos of announcing visits beforehand was required in order human rights provided a collective sense of purpose. to minimise the disruption of routine processes. For The ‘Robben Island’ experience,56 shared among Adam Carelse, announcing a visit or not was of lesser many a cadre of new political figures, brought with importance. The real issue was to report on what you it a political commitment to the notion of oversight, found without fear or favour, and not to feel that you and thus to the objectives of the JICS. Cordial had to apologise, as Carelse put it, for saying ‘your working relationships between particular individuals prison stinks. Just say it as it is. Call them to book. (notably Judge Fagan and Deputy Minister Cheryl But obviously then you need … character. You need Gillwald) created further conducive circumstances to be very strong.’59 for cooperation during the first phase of the JICS, but before long the relationships became strained. Our interviews also explored relationships between An adversarial relationship between Judge Erasmus the JICS and the Parliamentary Portfolio Committee. and Minister Ngconde Balfour was brought to a Portfolio committees have the potential to fulfil an head when Erasmus called in the police to attend to important oversight function. Under the recent corruption in Pollsmoor. The consequent breakdown chairmanship of Vincent Smith, both the DCS and in the relationship between the JICS and the Ministry JICS were expected to provide quarterly reports to required the new incumbent (Judge Yekiso) to meet the Portfolio Committee. Some of the respondents the Minister, who outlined the judge’s responsibilities commented in particular about the safety of as set out in the legal mandate and conveyed that the political space for debate provided by the he would ‘not appreciate any interference in the Portfolio Committee as a multi-party structure. The performance of my [Yekiso’s] duties’.57 sophistication of debate and interaction depends very much on the personalities and the commitment The reception at prisons of JICS personnel, recalled of key actors, as remarked on by the chair of the interviewees, varied from hostile to lukewarm, Portfolio Committee.60 depending on the area. At times, pro-reform elements within the ranks of the DCS unexpectedly opened The quest for managing relationships has lost none up opportunities for engagement. It is in this context of its importance. At a meeting of the Portfolio of ambiguous support that the office and status Committee in August 2013, the working relationship

SA Crime Quarterly No. 48 • june 2014 45 between the DCS and the Judicial Inspectorate police cell to the prison and what happened at the featured prominently. The concern related to the prison. DCS’s claim of not receiving JICS Reports, and the For Judge Erasmus the continuity between then JICS again feeling that its recommendations fell on and now lies at a deep-seated cultural level where deaf ears. The chairperson, Vincent Smith, injected inmates continue to be treated as bandiete.62 In a measure of realism into the discussions. There his view, although many structural changes have was bound to be tension, he argued, but ‘that need taken place, the mindset of prison wardens remains not necessarily be destructive. The main issue was unchanged. Fritz too pointed out that although the to ensure that the tension did not bring work to a demographic and political affiliation of Correctional 61 grinding halt.’ Services staff has changed dramatically with the democratisation of South Africa, the attitude towards The contribution of the JICS in inmates remains hostile and degrading: ‘(There is still the greater scheme of things this attitude that) … a bandiet is a bandiet. He has no At the end of our interviews we asked respondents rights, he’s a criminal.’ for their views on the overall contribution of the A last category of responses we typify as pragmatic Judicial Inspectorate to prison administration. realism. These responses see some progress, Roughly speaking, the responses fell into three but underline the complexities in criminal justice categories. One was a kind of qualified optimism reform. Gideon Morris’s response emphasised the about the protection embedded within the multifaceted nature of departmental change pursued constitution and the oversight role of the JICS. A after 1994. second was deep pessimism about prison conditions and the lack of political commitment to the protection [Currently the Department of Correctional Services] of prisoners’ rights. Finally, some respondents operates not because of management but attempted to balance the positive achievements of despite of management … I think there are some the JCIS with an admission of the difficulties facing serious challenges. But that’s not uncommon in government as a whole for now. the reform of institutions of state. Many interviewees stressed the enormity of prison Judge Fagan’s response to the question regarding reform, and emphasised that issues of overcrowding, the overall contribution of the JICS served as a useful health, corruption, coercion and sexual violence are reminder that the very concept of prison oversight systemically rooted. itself constituted a radical departure from the previous closed system. He also emphasised the rich potential Conclusion for oversight embedded within the institution at that In search of a retrospective account of the design, early period of operationalisation. establishment and operationalisation of the JICS, A second category of responses consisted of less we relied on the stories and recollections of key qualified and more damning responses. Here the incumbents. Through such stories we hoped to responses focused on continuities in the system of breathe additional life into our understanding of incarceration. For Fritz the traumatic memory of his the way in which structure and agency interact in own experience of police detention was evident in processes of social re-engineering. Insiders spoke his response that prisons remain inhospitable spaces of both continuities and shifts in the contextual with cruel power inequalities: challenges they had to negotiate along the way. But the stories also served as a critical reminder of the I mean from a substantive point nothing … I force of individual personalities in engaging such think very little changed in prisons. Prison is still challenges. about the things that happen all over: the shouts, screams that I heard, that was a police cell, and We were struck by the seriousness and sense of I can imagine what happens in the truck from the purpose exhibited by almost all of the respondents

46 institute for security studies who have helped shape the identity and trajectory of 9 Department of Correctional Services, Annual report the Judicial Inspectorate over the past decade and a 2012–2013, http://judicialinsp.dcs.gov.za/Annualreports/ ANNUAL%20REPORT%202012%20-%202013.pdf half. Creating an institution from scratch is rarely easy, (accessed 2 June 2014), 32. less so when the institution is charged with powers 10 Judicial Inspectorate for Correctional Services, Annual Report to inspect internal affairs. Closed institutions – such 1999, 10. as prisons – yield particular challenges to bodies of 11 Department of Correctional Services, Annual report 2012–2013, 26 and 47, http://judicialinsp.dcs.gov.za/ oversight, as the international literature concurs. Such Annualreports/ANNUAL%20REPORT%202012%20-%20 challenges multiply where crisis defines the state of 2013.pdf (accessed 2 June 2014). departmental affairs. 12 Muntingh, An analytical study of South African prison reform after 1994, 437; Keehn, Nyembe and Sukhija, Our own small study leads us to concur with much An evaluation of South Africa’s Judicial Inspectorate for of the recent research literature. Although the JICS Correctional Services, 7; S Jagwanth, A review of the Judicial Inspectorate of , Research Paper 7, is widely acknowledged to be an essential institution CSPRI, 2004, 62; J Gallinetti, Report on the evaluation of in a democratic South Africa, the role of this the independent prison visitors system, Research Paper 5, mechanism of oversight has failed to live up to initial CSPRI, 2004; S Wood, An exploratory study of staff capture at the South African Inspectorate of Prisons, International expectations. With varying degrees of emphasis, Journal of Comparative and Applied Criminal Justice (2012), these ‘insiders’ appeared aware of the shortcomings http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3348860/ (accessed 20 October 2013). of the Inspectorate. For those currently involved, it 13 Judge Mark Kumleben and Professor Dirk van Zyl Smit. is a matter of making the best of a difficult situation 14 Judges John Trengove, Johannes Fagan, Nathan Erasmus, whose remedy lies quite beyond their powers and James Yekiso, Deon van Zyl and Vuka Tshabalala. responsibilities. 15 Albert Fritz. 16 Gideon Morris, a former Director and Adam Carelse, the To comment on this article visit current CEO. http://www.issafrica.org/sacq.php 17 Vincent Smith. 18 Amanda Dissel, Lukas Muntingh, Chris Giffard. Notes 19 The interviews with key incumbents started on a personal 1 This research has been funded by the Open Society note. We asked respondents about their social and Foundation. We hereby also acknowledge the comments on professional backgrounds and how they became involved earlier drafts that we received from Lukas Muntingh, Gideon with the Judicial Inspectorate of Correctional Services (JICS). Morris, Jeffrey Lever and two anonymous reviewers. The life stories were characterised by considerable diversity in terms of background, political experience and worldview. 2 Lukas Muntingh, An analytical study of South African prison An interesting mix of personal fortune, fate and chance reform after 1994, unpublished PhD thesis, 2012, 20. seemed to have combined to either push or pull individuals 3 E Keehn, N Nyembe and T Sukhija, An evaluation of South into the orbit of the JICS. Africa’s Judicial Inspectorate for Correctional Services – 20 This paper draws on some of the research findings of C assessing its independence, effectiveness, and community McGrath and E van der Spuy, ‘Hier kom die Judge se engagement, Sonke Gender Justice Network Report, 2013, manne’: the Judicial Inspectorate of Correctional Services: 7. a view from the inside, Centre of Criminology, University of 4 A Dissel, South African prison conditions: the inmates talk, Cape Town, October 2013. Imbizo 2 (1996), 4–10. 21 The Prison and Reformatories Act 1911 (Act 13 of 1911). 5 As of 31 March 2011 there were 18 correctional centres in 22 Interview with Chris Giffard, Cape Town, 19 August 2013. South Africa critically overcrowded at 200% capacity (Keehn, 23 Interview with Judge Nathan Erasmus, former Inspecting Nyembe and Sukhija, An evaluation of South Africa’s Judicial Judge, Cape Town, 4 July 2013. Inspectorate For Correctional Services, 8). 24 Interview with Judge John Trengove, former Inspecting 6 Department of Correctional Services, Statistical information, Judge, Somerset West, 13 June 2013. http://www.dcs.gov.za/AboutUs/StatisticalInformation.aspx (accessed 28 May 2014). 25 Interview with Judge Deon van Zyl, former Inspecting Judge, Somerset West, 12 June 2013. 7 Department of Correctional Services, Annual report 2012–2013, http://judicialinsp.dcs.gov.za/Annualreports/ 26 Department of International Affairs, Prison administration in ANNUAL%20REPORT%202012%20-%202013.pdf South Africa, 1969, 30. (accessed 2 June 2014). 27 Interview with Judge Johannes Fagan, former Inspecting 8 Lukas Muntingh, The prison system, in Chandre Gould (ed), Judge, Cape Town, 11 June 2013. Criminal injustice in South Africa: a civil society perspective, 28 Interview with Judge Vuka Tshabalala, current Inspecting Pretoria: Institute of Security Studies (ISS), 2009, 38. Judge, Cape Town, 20 August 2013.

SA Crime Quarterly No. 48 • june 2014 47

Crime Quarterly June 2014.indd 47 7/11/14 2:54:13 PM 29 Interview with Albert Fritz, Minister of Social Development, 58 Judge Deon van Zyl. Western Cape Provincial Government, former Inspector in 59 Adam Carelse. JICS, Cape Town, 8 August 2013 60 Interview with Vincent Smith, Chairman of the Portfolio 30 Minister of Justice v Hofmeyr (3) SA 131 (A) 1993. Committee on Correctional Services, Johannesburg, 16 July 31 Dirk van Zyl Smit, Prisoner’s rights, South African Human 2013. Rights Yearbook 5 (1994), 269. 61 Minutes of Portfolio Committee of Correctional Services, 32 Dirk van Zyl Smit, Imagining the South African prison, lecture August 2013, 21, http://www.pmg.org.za/report/20130821- delivered at the University of Cape Town, 2006. department-correctional-services-update-use-consultants- relationship-judicial-inspectorate-1st-quarter-201314 33 Muntingh, An analytical study of South African prison reform (accessed 23 April 2014). after 1994, 393. 62 Literally, bandits. 34 Jagwanth, A review of the Judicial Inspectorate of Prisons in South Africa. 35 Dirk van Zyl Smit, Regulation of prison conditions, Crime and justice: A Review of Research 39 (2010) 4. 36 Thabani Jali, Commission of Inquiry into alleged incidents of corruption, maladministration, violence or intimidation in the Department of Correctional Services: full report, 2006, 566. 37 Judicial Inspectorate of Prisons, Annual report of the Judicial Inspectorate of Prisons, http://judicialinsp.dcs.gov.za/ Annualreports/annual2000.asp#3 (accessed 24 June 2014). 38 Correctional Services Act (Act 8 of 1998), S. 85 as amended. 39 Keehn, Nyembe and Sukhija, An evaluation of South Africa’s Judicial Inspectorate for Correctional Services, 13. 40 Judicial Inspectorate for Correctional Services, Office of the Inspecting Judge, Annual report 2009–2010, 42. 41 Gallinetti, Report on the evaluation of the independent prison visitors system, 14. 42 Interview with Adam Carelse, past CEO of the JICS, Cape Town, 17 July 2013. 43 Chris Giffard. 44 Adam Carelse. 45 Judicial Inspectorate for Correctional Services, Office of the Inspecting Judge, Annual report 2001–2002, 21. 46 Judicial Inspectorate for Correctional Services, Office of the Inspecting Judge, Annual report 2002–2003, 17. 47 Interview with Gideon Morris, former director of JICS, Cape Town, 14 June 2103. 48 Judicial Inspectorate for Correctional Services, Office of the Inspecting Judge, Inaugural report, 1999, http://judicialinsp. dcs.gov.za/Annualreports/annual2000.asp (accessed 2 June 2014). 49 Muntingh, An analytical study of South African prison reform after 1994, 217. 50 Telephonic interview with Dirk van Zyl Smit, 22 July 2013. 51 Adam Carelse. 52 Gideon Morris. 53 Judge John Trengove. 54 S Wood, An exploratory study of staff capture at the South African Inspectorate of Prisons, International Journal of Comparative and Applied Criminal Justice 36(1) (2007), 45–59. 55 Albert Fritz. 56 A shorthand term that refers to political prisoners’ experience of incarceration on Robben Island. 57 Interview with Judge James Yekiso, former Inspecting Judge, Cape Town, 8 August 2013.

48 institute for security studies Control, discipline and punish?

Addressing corruption in South Africa

David Bruce* [email protected] http://dx.doi.org/10.4314/sacq.v48i1.5

This article provides a ‘high level’ view of current debates about the causes of and remedies for corruption in South Africa, with a view to reflecting on how to address corruption. The article starts by providing an overview of the current integrity framework and initiatives to strengthen it within the domains of public administration and criminal justice. Alongside this, the article briefly reviews historical and sociological accounts of corruption in South Africa. This provides the basis for a discussion of the moral economy of corruption. Instead of focusing on questions of surveillance or deterrence, this strand of analysis implies that addressing corruption is not simply about addressing ‘moral deficits’ but engaging with questions about how to advance justice and fairness in South African society.

The manifestos of many of the political parties that implicated in corruption, is an obstacle to addressing contested South Africa’s recent general election corruption in South Africa. Of equal significance, illustrate the fact that corruption is regarded as a in terms of the focus of this article, is that the major problem in the country. For instance, the allegations against him have not ultimately served African National Congress (ANC) 2014 election as an obstacle to his achieving and retaining the manifesto commits the ANC to ‘intensify the status of ANC leader or dramatically affected the fight against corruption’, stating that the ANC ‘is popularity of the ANC. Indeed, overall support for the committed to a corruption-free society, ethical ANC, and for Zuma as leader of the ANC, declined behaviour across society and a government that slightly in the May 2014 national election. The ANC is accountable to the people’.1 For many people received 62,15% of the vote, compared to the in South Africa declarations such as these, by the 65,9% of the vote it received in 2009, with declines ANC and its representatives, are highly incongruous. being most pronounced in metropolitan areas Though he is not the only ANC member to have been such as Johannesburg, Tshwane and Ekurhuleni. implicated, this is above all because , Nevertheless, other than in the Western Cape, the ANC president and President of South Africa, has ANC remained the dominant party in all provinces repeatedly been linked to allegations of corruption. and in all metropolitan areas other than Cape Town. As this article will discuss, the fact that Zuma, Though some argued that this might be understood as President of South Africa, is himself allegedly to reflect support for the ANC broadly, rather than for Zuma specifically,2 it remains clear that Zuma himself 3 * Bruce is an independent researcher specialising in crime and continues to enjoy considerable personal support. policing. This article was the result of research conducted with and funded by the School of Law at the University of the That Zuma and other ANC leaders linked to Witwatersrand, Johannesburg. corruption have continued to enjoy widespread

SA Crime Quarterly No. 48 • june 2014 49 support raises questions about attitudes to corruption 1997 and 1998, for instance, government took in South Africa. It is of course likely that some of several steps to address corruption, including those who support the ANC are themselves firmly the introduction of a code of conduct for public opposed to corruption. They might support the ANC servants and the establishment of an inter-ministerial on the basis of its role in South Africa’s liberation from committee on corruption.7 The extensive regulatory apartheid, or on the basis of its programmes and framework that now exists, intended to ensure that social policies. Nevertheless, the ANC’s and Zuma’s public servants and politicians adhere to standards continued popularity points to an obvious conclusion: of integrity, has taken shape over several years and 4 that rather than being ‘united against corruption’, includes, for instance, codes of conduct binding on many South Africans are willing to excuse or overlook all employees of the public service8 and on municipal acts of corruption. That attitudes of this kind exist staff members.9 There is also an executive ethics is of course reflected in the fact that corruption is code binding on members of the Cabinet, deputy a substantial social problem. However, corruption, ministers and members of Provincial Executive unlike violent crime, is not associated with an outsider Councils10 (required in terms of the Executive or underclass, but extends into the upper reaches Members Ethics Act 82 of 1998), and a code of of the state and political elite, implying that these conduct that is binding on parliamentarians.11 attitudes are to be found within ‘mainstream’ South Some provincial legislatures12 as well as a number African society. of government departments and other official I do not intend to argue that declarations by senior institutions13 have also introduced codes of conduct. politicians of their resolve to address corruption There are also provisions for financial disclosure, may be dismissed as mere rhetoric. As this and a prohibition against members of the public article will illustrate, South Africa has an elaborate service doing remunerative work outside of the framework of policies, laws and mechanisms public service without express authorisation from the intended to ensure the ‘integrity’ of public servants executive authority.14 Provisions also exist to ensure and politicians. Furthermore, it would appear that accountability for the management of finances in there is an investment by some government officials government departments15 as well as a legislative and in strengthening the detection, deterrence and regulatory framework governing public procurement punishment of corruption.5 Tolerance for corruption 16 needs to be understood alongside this reality. (supply chain management) and protecting .17 The Prevention and Combating This article is concerned with developing an of Corrupt Activities Act18 and the Prevention of integrated understanding of these issues. It provides Organised Crime Act 121 of 1998 provide, inter an overview of the current government integrity alia, for civil forfeiture of illegally obtained assets. framework and reform initiatives intended to Laws also provide for the surveillance of high strengthen anti-corruption efforts. Debates about this value financial transactions by a state-run financial framework and how to strengthen it imply certain intelligence centre.19 Legislation also exists to approaches to addressing corruption. In addition, promote government transparency in the conduct of the article highlights work on the history and ‘social its affairs.20 psychology’6 of corruption. This in turn provides the basis for an understanding of the ‘moral economy’ of In 2002 Cabinet approved a public service anti- corruption. corruption strategy,21 and in September 2003 issued an instruction that all departments should have a The South African government minimum anti-corruption capacity (MACC). In 2006 integrity framework the Department for Cooperative Governance and Corruption as a social problem began to receive Traditional Affairs complemented these initiatives with attention from policy makers relatively soon after the introduction of a local government anti-corruption South Africa’s transition to democracy. During strategy.22 In 2011 the Department of Public Service

50 institute for security studies and Administration (DPSA) introduced a Public Sector Law enforcement and accountability Integrity Management Framework.23 The DPSA mechanisms and Public Service Commission (PSC) have also Alongside this intricate framework of ethical codes, published various resource materials for managers regulations, laws and internal mechanisms for and employees of government departments.24 the management of integrity, South Africa also Management of integrity has an extensive range of organisations with In line with the obligations imposed by the Public mandates that include investigation of allegations Finance Management Act25 as well as the MACC of corruption. These agencies, referred to by the requirements, departments and other governmental National Development Plan as ‘the multi-agency anti- entities have internal systems ostensibly intended corruption system’,30 include: to ensure compliance with financial reporting • The South African Police Service (SAPS) and requirements and promote integrity. For instance, Directorate for Priority Crimes Investigation (DPCI) a Public Service Commission assessment in North West Province in 2010/11 found that six out of the 12 • The Special Investigations Unit (SIU) provincial government departments had dedicated • The anti-corruption units, while in two other departments • The Asset Forfeiture Unit (AFU) anti-corruption personnel were said to be located within Risk Management or other units. Within all • The National Prosecuting Authority (NPA) also but one of the departments with dedicated units the needs to be understood as part of the anti- assessment suggests that staffing is inadequate. In corruption architecture. The NPA houses not the Department of Education, 13 of the 21 staff are only the National Prosecuting Service but also said to be highly competent. In the remaining five the AFU, and other units such as the Specialised departments one staff member is described as ‘highly Commercial Crime Unit and Office of Witness competent’, nine are described as ‘adequate’ and Protection that may also play a role in corruption nine are described as ‘newly appointed: still gaining cases31 experience’.26 • The courts can also be seen as part of this Yet even where these structures exist it does not enforcement machinery32 necessarily mean that effective action is taken to investigate and respond to alleged acts of corruption. • The Independent Police Investigative Directorate For instance, of 289 cases reported to the National (IPID) Anti-Corruption Hotline that were referred to North • The South African Revenue Service (SARS) West government departments since September • Other agencies that might be regarded as part of 2004, feedback had been provided on 76 cases (26%) and 49 cases (17%) had been closed.27 No an integrity and anti-corruption system include the feedback had been received on any of the cases National Intelligence Agency and the office of the 33 reported during the preceding financial year.28 State Attorney

Anti-corruption units are only one component of a In his 2013 State of the Nation address Zuma substantial range of structures and procedures that referred to ‘the Anti-Corruption Task Team’, which departments are supposed to establish. Of these, he said comprises the , the SIU and the arguably the most important are the core financial NPA.34 The AFU may be assumed to be part of the management functions. As illustrated repeatedly task team by virtue of being located within the NPA. by the reports of the Auditor-General, the latter are In addition, several ‘hotlines’ have been established frequently ineffective, particularly at local government by government to facilitate reporting of alleged level.29 corruption or other problems.

SA Crime Quarterly No. 48 • june 2014 51 Governance and oversight • An Ethics, Integrity and Disciplinary Technical Assistance Unit will be established within As distinct from the ‘law enforcement’ role that the DPSA to ‘provide technical assistance is performed by many of the agencies referred to and support to … all spheres of government above, there are also a number of government regarding the management of ethics, integrity agencies that provide oversight, which includes and disciplinary matters relating to misconduct in monitoring state agencies and promoting their the public administration’, among others.39 In an compliance with the regulatory and ethics framework. address in February 2014 the previous Minister These include: of Public Service and Administration said that the • The DPSA unit was being established ‘to deal with a whole variety of disciplinary and ethical conduct cases, • The PSC because we have found that departments and • The Auditor-General (AG) spheres of government do not have the expertise to deal with most of these cases and we are • In addition to ensuring compliance with financial unable to apply corrective measures immediately laws and regulations the National Treasury while officials are on paid suspensions for years maintains a database of ‘restricted suppliers’ and at taxpayers’ expense’.40 another database of ‘tender defaulters’ • An ‘Office of Standards and Compliance’ will be New public service reforms established inter alia to ‘promote and monitor On 15 August 2012 the National Development Plan compliance with minimum norms and standards’ 41 (NDP) was launched. The plan, a product of the in public administration. In an earlier address National Planning Commission, is intended as a by Minister she indicated that strategy to address poverty and inequality in South this was in part motivated by the fact that ‘a vacuum exists with respect to ensuring the Africa through, inter alia, promoting faster and implementation of recommendations from more inclusive growth, higher public and private constitutional oversight bodies like the PSC, AG investment, and improved education and skills.35 In and Public Protector’s Office’.42 his State of the Nation address in February 2013 Zuma said that the NDP had been adopted by • All public servants will be prohibited from doing government and that the activities of all departments business with the state.43 The extension of must be aligned with it.36 provisions in this regard was motivated by the realisation that those doing business with the Central to the NDP’s objectives being realised is the state were not necessarily only those at the most need for what it calls a ‘capable and developmental senior levels. state’. The potential for developing such a state, and the potential to achieve many of the other • Obligations regarding financial disclosure will NDP objectives, is clearly directly linked to the be extended to all government employees 44 effectiveness of efforts to address corruption, the at national, provincial and municipal level. subject of Chapter 14 of the Plan. Since early 2013 ‘According to the Public Service Commission a number of steps have been taken both in pursuit and the Auditor General reports, the majority of the ‘capable state’ proposed by the NDP and of public servants with business interests with a view to strengthening the state’s response are officials on salary levels 4 to 8 who were to corruption. The most important of these would previously not included in the financial disclosure 45 appear to be the introduction of a new Public framework.’ Administration Management Bill37 that was passed by • The Minister of Public Service and Administration Parliament in March 2014 and awaits the signature may specify minimum educational or other of Zuma. Described as an ‘anti-corruption bill’,38 it, standards for positions within the public among other things, provides that: service.46 In 2013 the Minister indicated that

52 institute for security studies positions where minimum qualifications would Some assessments focus on apparent gaps in the be a priority would include national directors- legislative regulatory and ethical framework. For general, heads of provincial departments and instance: municipal managers as well as chief financial • Whilst concerns have been expressed about 47 officers. whether law reform can indeed benefit 53 • A National School of Government will be whistleblowers, the National Planning established to ‘promote the progressive Commission and others have motivated for amendments to the Protected Disclosures realisation of the values and principles governing Act to improve the protection provided to public administration and enhance the … whistleblowers, and the range of whistleblowers development of human resource capacity’.48 protected.54 The introduction of the Public Service Management • The Public Service Management Bill identifies Bill was preceded in August 2013 by the introduction as a key problem the number of public servants of a new Public Service Charter. The Charter calls on doing business with the state. It seeks to forbid public servants to serve the public in an unbiased and this as well as to discourage public servants from impartial manner, not to engage in transactions that engaging in illicit transactions by broadening are in conflict with their official duties, and to act on provisions relating to financial disclosure. Along fraud and corruption, nepotism, maladministration or similar lines, another proposal is for South Africa other acts that are prejudicial to the public interest.49 to introduce a public register of the beneficiaries of trusts and other legal structures.55 The idea During 2013 a Chief Procurement Officer (CPO) was has recently become the focus of anti-corruption also appointed within the National Treasury. The efforts in Europe, where trusts and other ‘shell CPO’s functions include the review of ‘high value and companies’ are used to disguise the proceeds of strategic contracts to ensure that value for money is corruption. derived and that all contracts adhere to the relevant prescripts’.50 Motivation for the establishment of • Recent events have also highlighted the office of the CPO is to be found in the Minister shortcomings in the Executive Members Ethics Act.56 The Act does not take account of the of Finance’s 2013 budget speech, which says that possibility that the Public Protector may make ‘in the present system, procurement transactions a finding against the President. The President is take place at too many localities … There is very supposed to inform Parliament about action to little visibility of all these transactions.’51 However, be taken against members of the executive who one commentator has suggested that these are implicated in a report by the Public Protector. measures may just turn ‘decentralised corruption In effect the President decides on action to be and mismanagement’ into ‘much higher level dodgy taken against him or herself.57 dealing’.52 On the other hand, many of the proposed reforms Obstacles to the effectiveness identify the key problem as being compliance with of integrity framework the established framework. It is widely agreed that factors contributing to the vulnerability of the public Despite this extensive integrity framework, corruption service to corruption have included the widespread continues to be a significant problem for South appointments of inexperienced managers and Africa. What then are the obstacles to addressing personnel, and high staff turnover. As a result there corruption? Are the key shortcomings failures of has been a weakening and sometimes breakdown of the design or the implementation of the integrity the management and control systems in public sector framework? The new public service reforms, and organisations.58 This kind of analysis seems to have other recent analyses, reflect a range of different informed many of the reforms, including the Ethics, views about the answers to these questions. Integrity and Disciplinary Technical Assistance Unit

SA Crime Quarterly No. 48 • june 2014 53 and Office of Standards and Compliance provided articulated strategic approach’.62 This echoes a 2002 for in the new Public Service Management Bill, as critique by the DPSA, which argued that ‘none of the well as the appointment in the Treasury of the Chief existing mandates promotes a holistic approach to Procurement Officer. Public Service Management Bill fighting corruption’.63 Not only is there no effective provisions for the Minister to set minimum standards lead agency,64 but none of the agencies has an for the recruitment of personnel are also implicitly explicit corruption prevention mandate. There is no guided by the understanding that improvements agency responsible for promoting anti-corruption in skills will help to ensure compliance by public education, for instance. servants with the various regulatory frameworks. The NDP nevertheless rejects the argument that One of the major vehicles through which black ‘fragmentation’ of anti-corruption efforts represents middle-class formation has been advanced has been a key problem. In line with this, it rejects the through a focus on ‘representation’ in the public ‘single anti-corruption agency model’ of which sector.59 The problems of compliance do not merely the Independent Commission Against Corruption reflect a shortage of skills. As argued by Von Holdt, (ICAC) in Hong Kong is often regarded as the the legacy of apartheid has been that skill became premier example. According to the NDP, South tied to white ‘racial power’. Within the public service, Africa ‘does not have the institutional foundation to contesting white domination has been associated make the ICAC a viable option’. In addition, while with the marginalisation of skill in employment ‘[i]ndependence entails insulating institutions from practices, contributing to an ‘ambivalence about political pressure and interference [a] single agency skill’ that, with other factors, ‘tended to work against approach is less resilient in this respect because the potential for development of a meritocratic and if the lone anti-corruption body faces political effective state bureaucracy’.60 In this context, the capture, the independence of the entire system is Public Service Management Bill’s focus on ‘minimum compromised’.65 Instead of a stronger centralised standards’ may not necessarily be well received anti-corruption body, the NDP recommends a throughout the public service. range of other measures to strengthen the multi- agency system, including ‘a review of the mandates Shortcomings in the bureaucracy have also been and functions of all agencies with a view to some linked to policies associated with the ‘New Public rationalisation’ and more funding to enable agencies Management’ (NPM) that became the orthodoxy to ‘employ skilled personnel and sophisticated in the public administration field in the late 1990s. investigative techniques’.66 Chipkin and others have argued that these policies have contributed to the neglect of systems of Political interference ‘basic administration’ and the fragmentation and The NDP therefore defends the multi-agency system. corporatisation of public administration in South However, it strongly emphasises the need to insulate Africa.61 Though there is a need to strengthen agencies that are part of the system ‘from political systems of ‘basic administration’, the nature of the pressures’.67 Of the agencies in the system, the office social challenges in South Africa requires that public of the Public Protector, under Thuli Madonsela, is administration continues to maintain a capacity for perhaps the only one that is currently regarded as innovation and responsiveness, suggesting that not operating relatively autonomously and willing to resist all practices associated with the NPM should be such pressure.68 But the Public Protector has limited rejected. power to enforce remedial action. For example, The absence of coordination of the overall anti- ANC leaders and others used the findings of an corruption effort has also been identified as a inter-ministerial task team to nullify findings against problem. In the words of a senior public service Zuma in Madonsela’s report on the construction of official, ‘[t]here isn’t an institution designated as the his homestead at Nkandla.69 In addition, not all of the leader or coordinator of efforts and there is no-one previous incumbents of the office have acted with clearly responsible for the development of a distinct, the same degree of fearlessness,70 indicating that the

54 institute for security studies nature of the role played by the Public Protector’s power.76 If this is the case, the implication is that office is strongly affected by the character of its there are significant constraints on the possibility leadership. that the autonomy of the criminal justice system will be reinforced. This is notwithstanding the fact that The SIU is the only agency solely dedicated to this is motivated for in the NDP77 which, in addition investigating corruption. But it can only initiate to a general call for the autonomy of agencies in the investigations on the basis of presidential multi-agency system to be reinforced, also motivates proclamations, is orientated towards ‘civil’ rather than for the senior leadership of the SAPS to be appointed criminal resolution of cases, and its head is appointed by means of a competitive process presided by the President.71 Related to the limited powers over by a panel.78 In the light of the risks involved of agencies such as the Public Protector and SIU, there is unlikely to be much enthusiasm for these current analyses of the integrity framework tend to recommendations among South Africa’s current identify the question of the independence of the key political leadership. criminal justice agencies – the SAPS, including the DPCI in complex or high-level cases, and the NPA – In order to resolve this impasse some observers have as being the primary challenge. proposed that there should be a blanket amnesty for acts of corruption.79 This, it is argued, would mean A central factor giving rise to the need for the that members of the political elite no longer have the current political leaders to maintain control over incentive to undermine the criminal justice system. In criminal justice agencies, is Zuma’s need to avoid return for the amnesty it is proposed that one would legal liability for the allegations of corruption against be able to secure the ‘removal of the entire Criminal him. It is, however, not only the President who Justice cluster from any possible political interference fears prosecution, but various individuals within the or influence’, thereby allowing the components of the political elite. Allowing the criminal justice agencies to criminal justice system to function independently.80 investigate corruption ‘without fear or favour’ would potentially endanger not only the President but also Implicit in the proposal appears to be the idea that some of the political alliances that have helped to the institutionalisation of corruption in post-apartheid secure power for the current elite. South Africa was in some ways associated with the transitional period and that those who are Above all else, political control over the key criminal implicated in corruption are not, on a continuing justice agencies is currently exercised through basis, invested in the need to use political power control over the key leadership positions within these to enrich themselves.81 On current evidence this agencies. Since the appointment of the heads of all seems to be an optimistic reading. The more realistic of these agencies is effectively controlled either by the approach at this point appears to be the strategy that President or the Minister of Police,72 senior politicians and public servants who are alleged to be involved in has been adopted by some opposition parties and corruption enjoy a high level of impunity.73 non-governmental organisations. This has involved turning to the courts to force government to uphold Where their control over key appointments has the provisions of the Constitution and other laws not been sufficient to protect them against action, in ensuring that obviously inappropriate personnel officials who have attempted to pursue corruption are not retained in key positions,82 that charges cases against allies of the President have been are not inappropriately withdrawn against favoured 74 the targets of direct victimisation. The downfall of individuals,83 and in contesting legislation that the Directorate of Special Operations () facilitates political interference.84 has also been linked to efforts to secure Zuma’s ascension to the Presidency.75 The history and social psychology of public sector corruption It has therefore been argued in the media that Zuma’s supporters are willing to execute ‘a scorched earth A somewhat different of analysis of corruption strategy on public institutions’ to preserve Zuma’s in South Africa focuses on the history of, and

SA Crime Quarterly No. 48 • june 2014 55 relationship between, past and present-day arms deal. Another stream of analysis focuses on the corruption. Corruption in South Africa predates ‘socio-psychological pressures on the new political apartheid. Apartheid itself may be depicted as a elite’.91 Post-apartheid South Africa is a country in system of institutionalised structural corruption, with which the ideas of racial justice and equality enjoy power being abused to ensure that the country’s prominence in a global context of the triumph of resources were primarily used to benefit the white consumer capitalism and the retreat (if not defeat) minority. As argued by Van Vuuren, ‘A near monopoly of the idea of social solidarity. A large proportion of on money, power and influence were in the hands the white population continue to enjoy a standard of of a minority and they used this to either violently living – characterised by the ownership of suburban suppress the majority or, at best, transfer resources property and consumption of high-end consumer in order to stave off the inevitable revolution.’85 During goods – comparable to that in the global ‘metropole’. apartheid, corruption manifested in a multiplicity of But high levels of racialised inequality persist. ways, facilitated by strict official secrecy provisions. In so far as the members of the new elite and middle One place in which continuities between past class define equality in relation to the lifestyles and present corruption can be identified is in the enjoyed by white South Africans, many still find provinces, where provincial governments have themselves to be disadvantaged in relation to other incorporated homeland civil servants into the current people of an equivalent professional position. This administrations. Corruption was rife in many of the is reinforced by the fact that, as Netshitenze has .86 Meny-Gilbert and Chikpin argue that argued, unlike their ‘white counterparts’, members ‘[M]any apartheid-era administrations, for example, of the black middle class often lack historical 92 especially in the former bantustans, had weak assets. Related to this, their changing class administrative and technical capacity and were location also often involves acquiring substantial deeply implicated in patrimonial relations. As the levels of debt. At the same time members of the apartheid state progressively ceded power to the black middle class often have obligations not only homelands so the bantu authority system provided to extended families, many of whom remain in more opportunities to traditional elites, senior poverty, but other responsibilities that they are seen to carry relative to their newly established social bureaucrats and South African companies for the status and advancement.93 Improvements in social accumulation of wealth.’87 status therefore may seem to carry obligations that In the post-apartheid era the ‘arms deal’ of the late are greater than the privileges that they confer. In 1990s has been said to have played a crucial role in the words of Njabulo Ndebele, even among the institutionalising corruption. Through the deal, senior political elite the context is therefore often one where politicians effectively endorsed the use of public ‘genuine personal material needs …, shaped by office for self-enrichment, giving the green light to historic deprivation, brutally compete with social corruption more generally.88 Though there were many commitment that once gave meaning to the struggle individuals who benefited, Holden has argued that for liberation’.94 Generalised white affluence alongside some role players may have supported the deal in black poverty, and economic insecurity even among order to secure funding for the ANC.89 Even if this much of the black elite, clearly raise profound is true, it seems that the boundaries between the questions about the meaning of equality and the interests of the political party and those of individuals terms on which this is to be achieved. were already blurred before the deal took place90 and The vagueness and ambiguity of the term that the arms deal rapidly became a vehicle for well- ‘transformation’ has itself fed into a blurring of the positioned individuals within the political elite to enrich distinction between the objective of black middle themselves. and upper class advancement and that of more Corruption in post-apartheid South Africa cannot, egalitarian social development. They have been however, purely be understood in terms of presented ‘as if they were one and the same thing’ continuities with apartheid and the legacy of the while in practice they are ‘competing imperatives’.95

56 institute for security studies Along with the emphasis on representation in public A contemporary political morality may be a third service and other employment, ‘deracialising the strand in this moral economy. Pointing out that, due class of capitalists’,96 thereby ensuring that black to practices such as fronting, policy instruments such South Africans are appropriately represented among as BEE have not necessarily achieved the objective those South Africans who are most affluent, has of the creation of a black capitalist class, Chipkin ended up being prioritised over a broader project of suggests that ‘misuse or deviation from public sector social change. In practice therefore, the South African processes’ might be seen as ‘a condition of realising 103 state’s project of transformation has come to be political and economic objectives’. In terms of this dominated by black middle and upper class interests. perspective, corruption may then be rationalised in relation to the disadvantages that black South This in turn has fed into the ‘canonisation’ of policies Africans still suffer relative to white South Africans, of Black Economic Empowerment (BEE),97 creating and be tacitly accepted by many within the elite an environment that is rich with opportunities for as a means to ‘reverse historic racist inequities’.104 individuals and groups in close ‘proximity to power’ Indeed, many individuals may not see the pursuit to use this to ‘corruptly secure government work’.98 of self-interest through corruption and of broader The moral economy of corruption developmental goals as mutually exclusive, but simply part of the broad pursuit of racial redress. What is beginning to emerge from these reflections In yet another variation, corruption may be on the history and social psychology of corruption rationalised in relation to perceived unfair treatment is a framework for analysing ‘the moral economy’ in the work environment, also by white South of corruption in South Africa. In terms of one Africans who see themselves as having been unfairly strand of this analysis corruption has many of disadvantaged by affirmative action.105 Thus, in the characteristics of a ‘neo-patrimonialism’ in rationalising corruption, various loyalties, solidarities which ‘modern democratic procedures as well or moral understandings are potentially brought to as rational legality’ are built ‘on a foundation of bear by individuals trying to negotiate their personal traditional and highly personalised reciprocities and economic and social realities. loyalties’.99 In terms of this type of view, corruption is a manifestation of a ‘premodern conception … In a manner that is perhaps comparable to the late that refuses to distinguish between a public leader 19th century French society that Emile Durkheim observed, current day South Africa remains in and public resources’100 and is tied to interpersonal uncertain and ‘uneasy transition from one state of connections that are rooted in friendship, familial and solidarity or integration to another’.106 As part of its broader ethnic ties.101 triumphalism the ANC is often inclined to emphasise A second possibility is that ‘corrupt solidarities’ are its role in ‘liberating’ South Africa. Yet it must be contemporary manifestations of political and other remembered that democratic South Africa and its solidarities, in part animated by ideas of justice and constitution are products of a negotiated settlement. associated with opposition to apartheid and the The persistence of corruption serves to highlight the apartheid period more generally. This possibility is reality that many, even within the ANC itself, do not alluded to by Gilder who asks, inter alia, whether necessarily unambiguously endorse the prescripts ‘notions of nepotism and cronyism adequately take of the Constitution and that it may serve as merely into account … the solidarity amongst those who one of a number of moral and intellectual points of gave so much of themselves in the struggle for reference. democracy’.102 Much apartheid opposition activity Engaging with corruption as moral behaviour appears was criminalised by the apartheid state. Linked dangerous, as it carries the risk of giving credibility to this, those within the ranks of the liberation to and legitimising corruption. However, it may be a movement tended to give precedence to values of necessity if there is to be a fuller engagement with internal solidarity over those of adherence to the law. the problem of corruption in South Africa, and to

SA Crime Quarterly No. 48 • june 2014 57 ensure that efforts to address corruption have greater mobilise broad popular opinion against corruption, traction. Critical reflection on these issues should with corruption providing the main motivation for only pay attention to the fact that apparently moral claims a relatively small number of community protests.113 may reflect deeply held understandings and beliefs, Instead, over recent years, the biggest popular but may also be superficial ‘rationalisations’ used to mobilisation in relation to matters of corruption was in excuse behaviour motivated by greed. As Sykes and support of the efforts to protect Zuma against having Matza highlight, criminal behaviour is associated with to face trial for corruption. In many other instances ‘techniques of neutralisation ... which enable people where alleged corruption is exposed, it appears to methodically to counter the guilt and offset the be motivated by the desire to settle political scores censure they might experience when offending’.107 rather than by an intolerance of corruption.114

Furthermore, though they may be linked to apparently Though there is an elaborate integrity framework ‘pro-social’ historical loyalties or solidarities of one already in place, and steps are being taken to kind or another, the alliances that have emerged are strengthen it, the impression is that anti-corruption not benign in their implications. Rather the ‘corruptive efforts suffer from a lack of traction. It is possible that collusions ... become the new foundation for group this reflects deficiencies in the development of ‘ethical solidarity … and will be hostile towards any regulatory values’ among perpetrators. But, as this article measures, whatever their merits, which emanate from suggests, this may also reflect the presence of an outside the group’.108 In due course they run the risk alternative ‘moral economy’ that serves to legitimise of creating ‘a parallel system of power that turns our corruption. If this is true it may imply that addressing democracy into an empty shell’.109 corruption is not necessarily about addressing a lack of moral rectitude, but partly involves understanding Implications for addressing integrity and interrogating the moral claims that are made in The current mobilisation against corruption cannot order to rationalise it. be assumed to represent a general rejection of Conclusion corruption by the elite. Though there are anti- corruption reformist elements within government,110 This article began by providing an overview of corruption could not exist at the current scale without the current integrity framework and initiatives some consensus among significant sections of the to strengthen it within the domains of public elite about its necessity and justifiability. Rather, administration and criminal justice. Initiatives and government’s mobilisation against corruption is debates about strengthening this framework largely likely to reflect a realisation that, while some forms speak to questions about the effectiveness of the of corruption may have been tolerated, it has lost framework as a mechanism for surveillance and control of corruption111 and that corruption has ‘run increasing deterrence by addressing the problem of away with itself’. As a result, corruption threatens the impunity. Alongside this, the article briefly reviews elite’s ability to credibly put itself forward as acting in historical and sociological accounts of corruption in the national interest, resulting in a loss of legitimacy South Africa. This provides the basis for a discussion and ultimately the loss of power. of the moral economy of corruption. Instead of focusing on questions of surveillance or deterrence Ambivalent attitudes to corruption among the elite are this analysis implies that efforts to address corruption also reflected more broadly in South African society. should engage with questions about how to advance The absence of a broad anti-corruption consensus justice and fairness in South African society. These needs to be taken into account in understanding two strands are not mutually exclusive. how to deepen anti-corruption initiatives. In many countries public pressure has been crucial in creating Work on procedural justice suggests that people’s a political environment where investigations against willingness to obey laws, rules and procedures high-level officials are possible.112 There has as yet is strongly influenced by the manner in which not been any instance where it has been possible to officials associated with institutions of the law

58 institute for security studies conduct themselves. For instance, ‘if courts and ac.za/product.php?productid=2261 (accessed 17 June other tribunals are conducted in a fair and neutral 2014). manner then obedience to the law in future is 8 Public Service Regulations, 2001, as amended, Chapter 2, http://www.dpsa.gov.za/dpsa2g/ 115 reinforced’. Thus the credibility of current public documents/acts®ulations/regulations1999/ service initiatives to strengthen disciplinary processes PSRegulations_13_07_2012.pdf (accessed 17 June 2014). may be enhanced if they are focused on improving 9 Local Government: Municipal Systems Act 2000 (32 of both their fairness and efficiency. A public service 2000), Schedule 2. that emphasises not only more efficient, but fairer 10 Executive Ethics Code, Proclamation No R.41, 2000, http://db3sqepoi5n3s.cloudfront.net/files/ promotion, discipline and human resource practices docs/020628execethicscode.htm (accessed 17 June 2014). may be more likely to win support, not only for the 11 Parliament of the Republic of South Africa, Code of conduct, reforms themselves but for the legal framework that undated, http://www.parliament.gov.za/live/content. it seeks to operate within and the social goals that it php?Category_ID=83 (accessed 17 June 2014). aims to advance. Likewise, the policing of corruption 12 See, for instance, Gauteng Provincial Legislature, Code of conduct, http://gpl.gov.za/index.php/our-legislature/code-of- more broadly might be more widely supported conduct.html (accessed 17 June 2014). if clearly linked to efforts to advance justice and 13 See, for instance, South African Police Service, Code fairness as core principles of South African society. of conduct, http://www.saps.gov.za/about/conduct. php (accessed 17 June 2014); Department of Justice and Constitutional Development, Code of conduct To comment on this article visit for the National Prosecuting Authority under Section http://www.issafrica.org/sacq.php 22(6) of the National Prosecuting Authority Act, 1998, 29 December 2010, http://www.info.gov.za/view/ Notes DownloadFileAction?id=138151 (accessed 14 May 2013); 1 African National Congress, Together we move South Africa Code of judicial conduct – adopted in terms of Section 12 of forward – 2014 election manifesto, http://www.anc.org. the Judicial Service Commission Act 1994 (Act 9 of 1994), za/2014/wp-content/uploads/2014/01/ANC-Manifesto- Government Gazette, 18 October 2012, http://www.justice. Booklet.pdf (accessed 17 June 2014). gov.za/legislation/notices/2012/20121018-gg35802-nor865- 2 Aubrey Matshiqi, Moral, ethical issues not major issues judicial-conduct.pdf (accessed 14 May 2013). for ANC voters despite Nkandlagate, Polity, 22 April 14 Public Service Act 1994 (103 of 1994), Section 30. 2014, http://www.polity.org.za/article/moral-ethical- 15 Public Finance Management Act 1999 (1 of 1999), notably issues-not-major-issues-for-anc-voters-despite- Chapter 5, sections 36–45. See also the Municipal nkandlagate-2014-04-22 (accessed 26 April 2014). Regulations on Financial Misconduct Procedures and 3 S’thembiso Msomi, Predictions of Zuma’s demise prove Criminal Proceedings, 30 May 2014, file:///C:/Users/David/ premature – yet again, Sunday Times, 6 April 2014. Downloads/37682_gon425.pdf (accessed 17 June 2014). 4 Jacob Zuma, State of the Nation Address by His Excellency 16 See, for instance, Treasury Regulations 2005, Gazette No Jacob G Zuma, President of the Republic of South Africa 27388, Section 16A, March 2005, http://www.treasury.gov. on the occasion of the Joint Sitting of Parliament, Cape za/legislation/pfma/regulations/gazette_27388.pdf (accessed Town, 13 February 2014, http://www.gov.za/speeches/view. 17 June 2014). See also Local Government: Municipal php?sid=43620&lid=1 (accessed 1 May 2014). Finance Management Act 2003 (56 of 2003), sections 5 Susan Booysen, Is ANC getting to grips with corruption?, 110–119. Sunday Independent, 17 March 2013, http://www. 17 Protected Disclosures Act 2000 (26 of 2000). iol.co.za/news/politics/anc-getting-to-grips-with- corruption-1.1487636#.UVk-VReKo7o (accessed 17 June 18 Prevention and Combating of Corrupt Activities Act 2004 (12 2014). of 2004). 6 Jeremy Cronin, We’ve been structured to be looted – some 19 Financial Intelligence Centre Act 2001 (38 of 2001), https:// reflections on the systemic underpinnings of corruption www.fic.gov.za/DownloadContent/LEGISLATION/ACTS/01. in contemporary South Africa, paper presented at the a38-01b.pdf (accessed 17 June 2014). symposium on International, comparative perspectives 20 Promotion of Access to Information Act 2000 (2 of 2000). on corruption, Public Affairs Research Institute (PARI) and 21 Department of Public Service and Administration, Public Innovations for Successful Societies, Princeton University, Service anti-corruption strategy, 2002. University of the Witwatersrand, August 2012, 6, http://www. pari.org.za/wp-content/uploads/Cronin-Structured-to-be- 22 Local government anti-corruption strategy introduced by looted-Aug2012.pdf (accessed 4 May 2014). the Department for Cooperative Governance and Traditional Affairs in 2006. 7 Vinothan Naidoo and Paula Jackson, Reviewing South Africa’s efforts to combat corruption in its bureaucracy: 23 Department of Public Service and Administration, Public 1994–2009, in P Jackson, J Muzondidya, V Naidoo et sector integrity management framework, 2011, http:// al, South African governance in review, Pretoria: Human www.dpsa.gov.za/dpsa2g/documents/misc/Integrity%20 Sciences Research Council, 2009, http://www.hsrcpress. Management%20Framework.pdf (accessed 17 June 2014).

SA Crime Quarterly No. 48 • june 2014 59 24 See, for instance, Department of Public Service and Bill by the South African Parliament, Townhouse Hotel, Administration, Anti-corruption capacity requirements, Cape Town, 13 March 2014, http://www.dpsa.gov.za/ 2006; Public Service Commission, Whistle-blowing – a mpsa/?q=content/remarks-minister-public-service-and- guide for public sector managers promoting public sector administration-honourable-lindiwe-sisulu-stakeholder accountability implementing the Protected Disclosures (accessed 4 May 2014). Act, undated, http://www.psc.gov.za/documents/docs/ 41 Public Administration Management Bill, Section 17. guidelines/PSC_odac_update.pdf (accessed 17 June 2014). 42 Lindiwe Sisulu, Remarks by the Minister for Public Service 25 Public Finance Management Act 1999 (1 of 1999). See, for and Administration at the media breakfast, International instance, Section 38(a)(i). Convention Center, Cape Town, 7 March 2013, http://www. 26 Public Service Commission, An assessment of professional dpsa.gov.za/article.php?id=222 (accessed 4 May 2014). ethics in the North West Provincial Government, September 43 Public Administration Management Bill, Section 8. 2011, 9–20, http://www.psc.gov.za/documents/2012/ 44 Ibid., Section 9. Ethics%20in%20the%20North%20West.pdf (accessed 17 June 2014). For an earlier discussion, see Naidoo 45 Department of Public Service and Administration, Public and Jackson, Reviewing South Africa’s efforts to combat Sector integrity management framework, 2011, 6, http:// corruption in its bureaucracy, 10–11. www.dpsa.gov.za/dpsa2g/documents/misc/Integrity%20 Management%20Framework.pdf (accessed 17 June 2014). 27 Public Service Commission, An assessment of professional Also see NPA, Our future, make it work, 451. ethics, 27. 46 Public Administration Management Bill, Section 13. 28 Ibid., 13. 47 Sisulu, Remarks by the Minister for Public Service and 29 See, for instance, Auditor General South Africa, Auditor Administration at the media breakfast. General buoyed by local government leaders whose 48 Public Administration Management Bill, Section 11. commitment has resulted in their entities’ improved audit results, 13 August 2013, http://www.agsa.co.za/ 49 Public Service Coordinating Bargaining Council, Republic of Portals/0/MFMA2011-12Extracts/MFMA_Media_releases/ South Africa – service charter, June 2013, http://www.dpsa. MFMA_2011_12_Media_Release.pdf (accessed 17 June gov.za/documents/PUBLIC%20SERVICE%20CHARTER%20 2014) 2013.pdf (accessed 16 April 2014). 30 National Planning Commission (NPA), Our future, make it 50 Minister of Finance , budget speech – 2014, work – National Development Plan 2030, 2012, 447, http:// 26 February 2014, http://www.treasury.gov.za/documents/ www.npconline.co.za/MediaLib/Downloads/Home/Tabs/ national%20budget/2014/speech/speech.pdf (accessed 16 NDP%202030-CH14-Fighting%20corruption.pdf, (accessed April 2014). 17 June 2014). 51 Minister of Finance Pravin Gordhan, budget speech – 2013, 31 South African Government Information, National Prosecuting 27 February 2013, http://www.treasury.gov.za/documents/ Authority of South Africa, http://www.info.gov.za/aboutgovt/ national%20budget/2013/speech/speech.pdf (accessed 17 justice/npa.htm#specialisedcomm (accessed 12 March June 2014). 2013). 52 Hilary Joffe, Legal intervention is not a long term answer to graft, Business Day, 8 May 2014, http://www.bdlive.co.za/ 32 Department of Public Service and Administration, Public opinion/columnists/2014/05/08/legal-intervention-is-not-a- Service anti-corruption strategy, 13. long-term-answer-to-graft (accessed 8 May 2014). 33 Department of Public Service and Administration, Anti- 53 Alison Tilley, Of silver bullets and whistleblowers, Daily corruption capacity requirements, 80–81. Maverick, 16 April 2014, http://www.dailymaverick. 34 Jacob Zuma, State of the Nation Address by His Excellency co.za/opinionista/2014-04-16-of-silver-bullets-and- Jacob G Zuma, President of the Republic of South Africa whistleblowers/#.U5lCkHKSwtA (accessed 17 June 2014). on the occasion of the Joint Sitting of Parliament, Cape 54 NPA, Our future, make it work, 451; David Lewis, The rot of Town, 14 February 2013, http://www.gov.za/speeches/view. corruption feeds on impunity of the powerful, Business Day, php?sid=34250&lid=1 (accessed 17 June 2014). 9 June 2014, http://www.corruptionwatch.org.za/content/ 35 , NDP launch speech by Trevor A Manuel, rot-corruption-feeds-impunity-powerful (accessed 12 June Minister in the Presidency: National Planning Commission, 2014). 15 August 2012, http://www.npconline.co.za/pebble. 55 Lewis, The rot of corruption. asp?relid=759 (accessed 17 June 2014). 56 Executive Members Ethics Act 1998 (82 of 1998). 36 Zuma, State of the Nation Address, 2013. 57 Carol Paton, Omission in Ethics Act creates ‘legal absurdity’ 37 Public Administration Management Bill 2013 (55B of 2013), in Nkandla furore, Business Day, 25 March 2014, http:// http://db3sqepoi5n3s.cloudfront.net/files/bill_55b_2013_1. www.bdlive.co.za/national/politics/2014/03/25/omission- pdf (accessed 17 June 2014). in-ethics-act-creates-legal-absurdity-in-nkandla-furore 38 Foster Mohale, Anti-corruption bill gets the nod in NA, In (accessed 25 April 2014). Session 14 (March/April 2014), http://www.parliament.gov. 58 Gavin Woods, Public sector corruption: behavioural origins za/live/content.php?Item_ID=5946 (accessed 3 May 2014). and counter-behavioural responses, inaugural lecture, 39 Public Administration Management Bill, Section 15. Stellenbosch University, 26 October 2010. 40 Lindiwe Sisulu, Remarks by the Minister of Public Service 59 Louis Picard, The state of the state – institutional and Administration, Honourable Lindiwe Sisulu at the transformation, capacity and political change in South Africa, stakeholder breakfast following the passing of the PAM Johannesburg: Wits University Press, 2005.

60 institute for security studies 60 Karl von Holdt, Nationalism, bureaucracy and the 75 David Bruce, Without fear or favour – the Scorpions and the developmental state: the South African case, South African politics of justice, South African Crime Quarterly 24 (2008), Review of Sociology 41(1) (2010), http://www.pari.org.za/wp- 11–15; Joey Berning and Moses Montesh, Countering content/uploads/2011/08/DysfunctionalState.pdf (accessed corruption in South Africa – the rise and fall of the Scorpions 12 February 2013). and the Hawks, South African Crime Quarterly 39 (2012), 61 Ivor Chipkin, The politics of corruption: two competing 3–10. definitions, Public Affairs Research Institute, October 2012, 76 Susan Booysen, Nkandla – the ANC’s house of cards, http://www.pari.org.za/wp-content/uploads/PARI-L.E.3- Sunday Independent, 6 April 2014, 13. The-Politics-of-Corruption-Two-Competing-Definitions- 77 NPA, Our future, make it work, 448. Oct-20121.pdf (accessed 17 June 2014); Cronin, We’ve 78 Ibid., 354. Note, however, that the panel is supposed to be been structured to be looted. appointed by the President. 62 Richard Levin, Corruption in South Africa – a complex and 79 Mario Oriani-Ambrosini, Amnesty is our best hope of beating systemic problem that needs an equally comprehensive corruption, Business Day, 6 August 2012, http://www.bdlive. and systemic response, presentation at symposium on co.za/articles/2011/06/08/mario-oriani-ambrosini-amnesty- International, comparative perspectives on corruption, is-our-best-hope-of-beating-corruption (accessed 17 June PARI and Innovations for Successful Societies, Princeton 2014); See also Glynnis Breytenbach, The politicisation of the University, University of the Witwatersrand, August 2012, criminal justice system, Focus 72 (April 2014), 54, file:///C:/ http://www.pari.org.za/wp-content/uploads/Levin- Users/David/Downloads/GBreytenbach_72_April%20(1).pdf Corruption-in-South-Africa.-PARI-Princeton-symposium- (accessed 25 April 2014). Aug2012.pdf (accessed 17 June 2014). 80 Breytenbach, The politicisation of the criminal justice system, 63 Department of Public Service and Administration, Public 54. Service anti-corruption strategy, 14. 81 Ibid., 53. 64 A National Anti-Corruption Forum (see http://www.nacf.org. za) was established in 2001, but this body has been largely 82 Niren Tolsi, ConCourt confirms Menzi Simelane appointment non-functional. invalid, Mail & Guardian, 5 October 2012, http://mg.co.za/ article/2012-10-05-59-menzi-simelanes-appointment-ruled- 65 NPA, Our future, make it work, 448. invalid (accessed 17 June 2014). 66 Ibid. 83 Sapa, Police spy boss Mdluli to face charges: Supreme 67 Ibid. Court, Times Live, 17 April 2014, http://www.timeslive.co.za/ 68 Thuli Madonsela: They tried to stop me, City Press, 23 March local/2014/04/17/police-spy-boss-mdluli-to-face-charges- 2014, http://www.citypress.co.za/politics/thuli-madonsela- supreme-court (accessed 17 June 2014). See also Staff tried-stop/ (accessed 3 May 2014). reporters and Sapa, Lawyers: Zuma will fight release of spy 69 Chris Barron, So many questions (Jackson Mthembu), tapes. Sunday Times, 6 April 2014. 84 See, for instance, Helen Suzman Foundation, Litigation, 70 See, for instance, Lionel Faull, Mushwana unmoved by http://hsf.org.za/projects/justice/litigation (accessed 17 June oilgate ruling, Mail & Guardian, 10 June 2011, http://mg.co. 2014). za/article/2011-06-10-mushwana-unmoved-by-oilgate-ruling 85 Hennie van Vuuren, Apartheid grand corruption – assessing (accessed 3 May 2014). the scale of crimes of profit in South Africa from 1976 to 71 Special Investigating Units and Special Tribunals Act 1994, Institute for Security Studies, 2006, 2, http://www. 1996 (74 of 1996), Section 3(1), http://www.siu.org.za/ issafrica.org/uploads/APARTHEIDGRANDC2.PDF (accessed sites/default/files/SIU%20Act%20with%202012%20 17 June 2014). Amendments%20-%2010%20Jan%202013.pdf (accessed 3 86 J Hyslop, Political corruption: before and after apartheid, May 2014). Journal of Southern African Studies 31(4) (2005), 773–789. 72 Hamadziripi Tamukamoyo, Independence in South 87 Sarah Meny-Gilbert and Ivor Chipkin, Public sector Africa’s anti-corruption architecture: failures and ‘manages’ to fail, Mail & Guardian, 22 March 2013, http:// prospects, Focus 71 (November 2013), file:///C:/Users/ mg.co.za/article/2013-03-22-00-public-sector-manages-to- David/Downloads/Independence%20in%20South%20 fail (accessed 17 June 2014). Africas%20Anti-corruption%20Architecture%20-%20H%20 88 Lee-Ann Collingridge, The arms deal – South Africa’s Tamukamoyo%20(1).pd (accessed 25 April 2014). corruption trailblazer, Corruption Watch, 12 February 2014, 73 See, for instance, ‘I will quit over Mdluli’, City Press, 1 April http://www.corruptionwatch.org.za/content/arms-deal- 2012, http://www.citypress.co.za/news/i-will-quit-over- south-africas-corruption-trailblazer (accessed 2 May 2014). mdluli-20120401/ (accessed 17 June 2014); Staff reporters 89 Paul Holden, The arms deal in your pocket, Johannesburg: and Sapa, Lawyers: Zuma will fight release of spy tapes, Mail Jonathan Ball Publishers, 2008, 255–260. & Guardian, 10 March 2013, http://mg.co.za/article/2013- 03-10-president-zuma-to-fight-release-of-spy-tapes 90 See, for instance, the case of Joe Modise as discussed in (accessed 17 June 2014); Tamukamoyo, Independence in Paul Holden, The arms deal and the erosion of parliamentary South Africa’s anti-corruption architecture. power, in M Plaut and P Holden, Who rules South Africa?, Johannesburg: Jonathan Ball Publishers, 2012, 96–109. 74 Sally Evans, Not guilty: Breytenbach vows to return to all her cases, Mail & Guardian, 27 May 2013, http://mg.co.za/ 91 Cronin, We’ve been structured to be looted. article/2013-05-27-breytenbach-not-guilty-im-going-back- 92 Joel Netshitenze, Competing identities of a national liberation to-all-my-cases (accessed 3 May 2014). movement versus electoral party politics: challenges of

SA Crime Quarterly No. 48 • june 2014 61 incumbency, Mapungubwe Institute for Strategic Reflection, article/2013-03-01-00-why-zwelinzima-vavi-is-under-attack 2012, http://www.mistra.org.za/Media/Speeches/ (accessed 17 June 2014). Documents/2.Competing%20identities%20of%20a%20 115 P A J Waddington, Review of Tom R Tyler, Why people National%20liberation%20Movement.pdf (accessed 2 May cooperate: the role of social motivation, Policing 7(1) (2013), 2014). 109–112. 93 Netshitenze, Competing identities of a national liberation movement. 94 Njabulo Ndebele, A meditation on corruption, City Press, 21 January 2012, http://www.citypress.co.za/columnists/a- meditation-on-corruption-20120121 (accessed 17 May 2014). 95 The quotes are from Cronin, We’ve been structured to be looted, 2, although he talks about competing imperatives of ‘individual redress’ and ‘substantial social development’. 96 Ibid. 97 Ibid. 98 Terence Creamer, Nzimande again warns on the dangers of share-focused BEE, , Polity, 11 October 2012, http://www.polity.org.za/article/nzimande- again-warns-on-the-dangers-of-share-focused-bee- tenderpreneurs-2012-10-11 (accessed 17 June 2014). 99 Anne Pitcher, Mary H. Moran and Michael Johnston, Rethinking patrimonialism and neopatrimonialism in Africa, African Studies Review 52, 1 (2009), 125–56, 145 as quoted in Tom Lodge, Neo-patrimonial politics in the ANC, African Affairs 113(450) (2014), 1–23, 4, http://afraf.oxfordjournals. org/content/113/450/1.full.pdf+html (accessed 2 May 2014). 100 Lewis, The rot of corruption. 101 Comments by reviewer. 102 Barry Gilder, Songs and secrets: South Africa from liberation to governance, Johannesburg: Jacana, 2012, 399. 103 Chipkin, The politics of corruption, 12. 104 Lodge, Neo-patrimonial politics in the ANC, 18. 105 Chipkin, The politics of corruption, 18. 106 Paul Rock, Sociological theories of crime, in M Maguire, R Morgan and R Reiner (eds), The Oxford handbook of criminology, 2nd ed, Oxford: Oxford University Press, 1997, 236. 107 Ibid., 241. 108 Ndebele, A meditation on corruption. 109 Oriani-Ambrosini, Amnesty is our best hope of beating corruption. 110 Booysen, Is ANC getting to grips with corruption? 111 Chipkin, The politics of corruption, 12. 112 Gabriel Kuris, Anti-corruption agencies: building to last, paper presented at the symposium on International, comparative perspectives on corruption, PARI and Innovations for Successful Societies, Princeton University, University of the Witwatersrand, August 2012, http://www. pari.org.za/wp-content/uploads/Kuris-Anti-Corruption- Agencies-Aug2012.pdf (accessed 17 June 2014). 113 Peter Alexander, Carin Runciman and Trevor Ngwane, Community protests 2004–2013: some research findings, media briefing, 12 February 2014, http://www.uj.ac.za/EN/ Faculties/humanities/departments/Research-Centres/sacsc/ Pages/home.aspx (accessed 17 June 2014). 114 See, for instance, Matumo Letsoalo, Why Vavi is under attack, Mail & Guardian, 1 March 2013, http://mg.co.za/

62 institute for security studies Taking stock of the last 20 years

Responses to organised crime in a democratic South Africa

Khalil Goga* [email protected] http://dx.doi.org/10.4314/sacq.v48i1.6

Following the end of apartheid, the South African state has faced a number of challenges. One of these has been the growing spectre of organised crime, which has weighed heavily on the public consciousness. The narrative has been one of organised crime, which is becoming increasingly sophisticated and dangerous, pitted against a weakening and ill-equipped state.

This article seeks to give insight into the legal and institutional measures taken by the South African state over the last 20 years. It focuses on direct state responses to organised crime, primarily changes to legislation and enforcement structures. It finds that although the state has been active in changing legislation to combat organised crime, it has often been its own worst enemy where enforcement is concerned, and has consequently lost some important tools in the fight against organised crime.

Like many other countries, South Africa has sophisticated banking and legal system – and our struggled with the growth of organised crime, and diminishing capacity to enforce its rules.’ the mainstream narrative has often been one of Criminologists and crime researchers have differed corruptible, underequipped, under-informed law in their assessments of the problem. Early post- enforcement, unable to deal with a rising tide of apartheid literature appears to accept that South dangerous, sophisticated, organised criminals.1 Africa suffered from increases in transnational In the mainstream media, South Africa has been organised crime and the growing sophistication of described as a ‘haven for organised crime’ with local organised crime groups.3 However, whether veteran investigative journalist Sam Sole describing the state has been overwhelmed by organised crime Czech fugitive Radovan Krejcir’s choice of South since 1994, is disputed. South Africa is far from 4 Africa as a refuge ‘symptomatic of the country’s being a criminalised state and it will be argued that over the last 20 years the state has taken strong deepening moral malaise’,2 arguing that ‘unless we legislative, regulatory and enforcement measures start to exercise discipline as a society, there is a to combat organised crime, with mixed levels of wave of people like him coming, attracted by our success.5 This article assesses the state’s response to organised crime, and is limited to important direct

* Khalil Goga is a researcher in the Transnational Threats and state responses. International Crime Division (TTIC) at the Institute for Security Studies. He received both undergraduate and Master’s degrees The research for this article consisted of an analysis from the University of KwaZulu-Natal. and review of secondary sources, including

SA Crime Quarterly No. 48 • june 2014 63 governmental and municipal reports, as well as key circumstances amounting to criminal conduct or an informant interviews conducted by the Institute for endeavour thereto which requires national prevention Security Studies as part of ongoing research on or investigation or crime which requires specialised organised crime. skills in the prevention and investigation thereof’.12

Understanding and defining For purposes of this study organised crime has been organised crime taken to refer to a broad range of serious economic and organised crimes that could be punishable The conceptualisation and definition of organised under POCA, including criminal activities that would crime is contentious. Researchers, policy makers, traditionally be seen as ‘white collar crime’ as well as law enforcement bodies and the judiciary have all crimes perpetrated by large ‘street gangs’.13 I will use used a variety of terms to describe a myriad of the term organised crime to describe the activities of criminal activities and criminal groups that could be organised criminals rather than referring to groups or considered ‘organised’ crime.6 In part, this is based networks.14 on historical and contextual understandings of organised crime, related to crime control efforts in the Using the abovementioned conceptualisation of United States and primarily rooted in conceptions of organised crime allows for a greater understanding of the American ‘mafia’.7 Organised crime has come to contemporary organised crime, and can incorporate 15 refer to both continued criminal activity and various new crimes such as cyber crime, which do not fit types of criminal groups. Andre Standing argued the typical form of organised crime. over ten years ago that, ‘on a technical level there Historical background is no definitive reason why organised crime is not a catch-all term that could be applied to all businesses Organised crime has existed in South Africa in that break the law or government departments that various forms since the colonial period. The structural commit ongoing crimes’,8 and that ‘the distinction factors influencing the rise of organised crime can between organised crime and other types of be traced back to this period and include the British crime was incoherent and was based on popular system of indirect rule and cross-border trade.16 stereotypes rather than persuasive arguments as More formalised organised crime groups were to why conventional organised crime is qualitatively also recorded in the late 1800s, for example the different from white-collar crime, government crimes ‘Irish raiders’ in early mining towns17 and Umkosi and terrorist activities’.9 Wezintaba, which established the ideological roots of some of the country’s prison gangs.18 Within South Africa, there are a variety of definitions of organised crime. The Prevention of Organised More recently, organised youth and defence gangs Crime Act of 1998 (POCA) is noticeably devoid of a emerged in the 1950s, although at that time clear definition. POCA does, however, list criminal ‘opportunities remained relatively limited and the activities that would be covered by the law, as well criminal markets small’.19 The roots of organised as offering fairly broad traits of membership to a crime as we see it today can be traced back to the criminal group. Importantly, there must be a group apartheid system that criminalised and marginalised committing the crimes, and there are stipulations over the majority of the population. For example, the types of the crimes to be considered organised shebeens, which were the progenitors of more crime. The South African Police Service (SAPS) has sophisticated crimes and criminal empires, had their relied on a variety of terms and definitions and often roots in the apartheid policy of alcohol control.20 uses the South African Police Service Act 67 of 1995 With the majority of state funds being used for the as reference.10 The Act defines organised crime as developmental needs of a white minority, suburbs ‘a person, group of persons or syndicate acting in with black populations had limited funding for an organised fashion or in a manner which could infrastructure and for policing. People often turned result in substantial financial gain for the person, away from the state to informal sources of security, group or persons or syndicate involved’11 and ‘the including criminal gangs.21

64 institute for security studies The apartheid government promoted organised African criminals, who left their home countries due crime in townships by supporting gangsters to to political instability,31 and other groups, including limit the activities of the anti-apartheid movement Middle Eastern, Eastern European, Italian and and to promote drug use.22 Outside the townships Indian/Pakistani criminals.32 Local crime groups also the apartheid state was involved in a variety of became increasingly sophisticated and were able to organised criminal activities including, but not limited network across the globe. In the Western Cape in to, corruption,23 , smuggling and particular, functioning cartels were formed.33 wildlife crime.24 Similarly, apartheid resistance also Towards the end of apartheid there was an turned to organised crime and informal channels, identifiable surge in crime within the country, both both to fund their activities and to overcome procurement problems. The liberation movement organised and inter-personal. By the early 2000s was able to develop and exploit routes for procuring crime reached unprecedented highs, though it has weapons and to gain much-needed funds through decreased significantly over the last 15 years. Figure 34 smuggling activities.25 After the transition to 1 illustrates the trends in serious crime since 1994. democracy many of these apartheid-era social and Organised crime in contemporary business links remained, and security personnel South Africa on both sides of the conflict were known to have made inroads in the private security business and in It is difficult to accurately determine the levels of organised crime, using the same routes and markets organised crime anywhere, and South Africa is no that they had used in the past.26 exception.35 Statistics and research on organised

The market also had an important effect on organised crime offer contradictory accounts. For example, crime. It is argued that growing demand for narcotics while vehicle theft, which often has an organised 36 across the globe, at the same time as many African crime component, dropped from 88 144 incidences 37 states were gaining independence in the 1960s and in 2004 to 58 312 in 2013, incidences of rhino 1970s, dramatically changed the modus operandi jumped from 22 to 1 004 in the same of criminal groups.27 During these years, smuggling period.38 Similarly, while there was an increase in and illicit trade routes were established across drug arrests,39 social research on drug use and gang Southern African borders but also as far afield as influence seems to suggest that there has not been a India.28 The late 1980s and 1990s saw an increase significant change in drug use.40 The increase in drug in foreign criminal groups within the country.29 These arrests could indicate better enforcement rather than transnational groups included Asian syndicates that an increase in drug trafficking. Or this could be due to were prominent in wildlife-related crimes,30 West factors such as a loosening of power monopolies and

Figure 1: Serious crimes 1994/5 – 2012/13

140 130 120 110 100 % 90 80 70 60 50

1994/95 1995/96 1996/97 1997/98 1998/99 2000/01 2001/02 2002/03 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 2009/10 2011/12 2012/13 1999/2000 2010/2011

Property Damage Contact Theft and Total crimes crimes to property crimes commercial and arson crime

SA Crime Quarterly No. 48 • june 2014 65 a decentralisation of the drug supply as new drugs entire police departments are alleged to be corrupt, such as tik have become popular, and that there are providing a variety of services to criminals, such as more street-level dealers41 who are easier to arrest. ‘losing’ dockets, and selling firearms and drugs.47

In much the same way that it is difficult to determine State response since the end whether there has been an increase in the drug trade, of apartheid it is also difficult to determine whether there has been an increase in transnational organised crime. RT The South African state has taken a number of steps Naylor argues that, to limit organised crime since the end of apartheid. These can broadly be broken down into changes while it is doubtless true that there is more in specialised policing and in new approaches to economic crime across borders today, there is combating organised crime, primarily by ‘following also much more legal business, and no proof the money’ and ‘taking the profit out of crime’.48 that the proportion of illegality is increasing faster. Indeed, to the extent that exchanges are becoming Enforcement: the SAPS and liberalised, flows more transparent, taxes cut and specialised units regulations relaxed, illicit traffic across borders The SAPS is the largest of the law enforcement is more likely to be shrinking relative to total bodies in South Africa. Its budget increased from economic transactions.42 R6 billion in 1994 to R63 billion in 2013, while the While one cannot argue that transnational organised correctional services budget increased from R1 billion crime in South Africa has not increased over the last in 1994 to R17 billion in 2013.49 ‘Victims of crime’ 20 years, considering the growth in the South Africa surveys and police statistics show a decrease in economy and the increase in international trade, crime over the past 20 years, yet the state readily the common narrative over foreign threats seems admits a number of failings. Both the 15 and 20 unnecessarily sensationalist.43 year reviews of state performance have highlighted Economically and socially, those involved with crime organised crime, ineffective operation and integration, 50 have continued to experience support through and corruption as serious persistent issues. criminal philanthropy and a community reliance on Although the state was arguably in a weakened the ‘criminal economy’, as described by Standing position after the end of apartheid as a result of 44 and Irish-Qobosheane. In many areas relationships the loosening of border controls and the transition between the police and the community are fraught, from a police force to a police service,51 the 45 while organised criminals fulfil a governance role. legislature and law enforcement began taking steps The economic power that comes through organised against sophisticated organised crime soon after crime is not limited to urban areas. In many rural it was identified as a problem.52 In 1991 the Crime areas, the trade in effectively supports Combating and Investigation division (CCI) of the thousands of people in the production and supply SAPS was established to combat organised crime. chain.46 By 1992 various organised crime groups had been identified and the police began building cases against Of particular concern within the country have been them using new investigative techniques highly reliant the apparent links between organised crime, political on crime intelligence.53 figures and law enforcement. A prominent example of this was the case of former police commissioner After 1994 the SAPS comprised around 500 Jackie Selebi who was sentenced to 15 years in specialised units, including units such as the South prison for his corrupt relationship with convicted African Narcotics and Alcohol Board (SANAB) and drug trafficker Glenn Agliotti. Similarly, Radovan vehicle crime units. In 2001 the SAPS announced Krejcir, the notorious Czech fugitive, was known to that the specialised units would be dissolved and have a relationship with Joey Mabasa while he was amalgamated into the broader police service and that head of Gauteng Crime Intelligence. Furthermore, this was in accordance with government’s strategy

66 institute for security studies to have an ‘integrated and coordinated approach crime threat analysis and street-level intelligence. to fighting crime, including organised crime’.54 The Street-level intelligence subsequently was often inept, SAPS restructuring sought to limit and streamline and an interviewee for this article cited the key loss the number of units, and units were disbanded or of intelligence on West African criminal networks amalgamated into other larger units.55 as an example.64 On the other hand, it has been argued that, ‘under apartheid, SANAB was already Those arguing in favour of the disbandment of considered to be completely corrupt’65 and that the specialised units held that the new structure would high levels of corruption in SANAB were linked to the be more efficient and that local police stations ‘Boere mafia’ and relationships between ethnicity and needed to be empowered by locating expert skills crime.66 Furthermore, there were suggestions that at local level. The transfer of skilled officers was units such as SANAB were not as efficient as they intended to allow for a more equitable allocation of should have been. However, while the reasons for the skills to areas that were under-resourced as a legacy amalgamation might have been valid, skills were lost. of apartheid. It was also argued that ‘a key motivation For example, the incorporation of SANAB into the underlying the restructuring is that it provided an organised crime division in 2004 meant that many of opportunity for removing detectives who were under- those redeployed were not using their skills at a local performing, from the specialised units’.56 Another level.67 motivation was that there was confusion over the use and responsibilities associated with the large In the meantime, new institutions were established number of units, and often units would avoid taking outside the SAPS to deal with corruption and on investigations for fear of overlap in responsibilities organised crime. This included the Specialised and accountability.57 Commercial Crimes Unit (SCCU), located within the SAPS but with a high level of interaction with However, as has been reported during testimony at other institutions, such as the specialised courts, 58 the Khayelitsha Commission of Inquiry, the shifting established in 1999 with a team of dedicated of personnel did not have the desired effect. High- prosecutors.68 To put the importance of such a income areas maintained higher numbers of police, unit into context, only 15 commercial crimes were while poorer areas often remained understaffed and prosecuted in Johannesburg in 1997, but by 2007 underequipped to deal with high levels of violent there were over 700 such prosecutions in Pretoria crime. Poorly performing staff were ‘dumped’ in and Johannesburg.69 Other units, such as the Special poorer areas while better performing staff were Investigating Unit (SIU), were also developed through ‘poached’. Moreover, similar to Khayelitsha, many the Special Investigating Units and Special Tribunals areas often have infrastructural, social and economic Act 74 of 1996, to investigate public administration challenges that make policing more difficult than it corruption. would be in suburban areas.59 This has contributed to One of the most visible specialised units established a breakdown in police-community relations. after 1994 was the Directorate of Special Operations An illustration of the advantages and disadvantages (DSO), commonly known as the Scorpions. The of specialised units can be drawn from SANAB, Scorpions came into operation in January 2001 to which was a controversial unit until its closure in investigate and prosecute serious organised crime 2004.60 On the one hand it has been argued that and corruption in cooperation with other units. Under ‘SANAB ...[was] regarded by foreign governments the National Prosecuting Authority (NPA), the DSO as the most effective drug policing institution in employees selected the cases they investigated. the region’.61 SANAB officers had close links with Despite complaints over the manner in which the the Drug Enforcement Agency (DEA) and other DSO operated, they were seen to be effective, foreign bodies that provided them with training and with a high conviction rate.70 The successes of the skills,62 and the closure of SANAB was seen as a Scorpions included limiting the terror activities of major setback.63 Its disbandment resulted in a loss People Against Gangsterism and Drugs (PAGAD), of networks, data collection techniques, contacts, taking down high-level platinum smugglers, high-

SA Crime Quarterly No. 48 • june 2014 67 profile drug dealers and Chinese abalone smugglers. Legislative changes The DSO was a significant player in chasing In 1999, economics professor RT Naylor wrote, down sophisticated commercial crimes, including investigating Brett Kebble and Johannesburg [O]ver the last 15 years there has been a quiet Consolidated Investment (JCI). The DSO also revolution in the theory and practice of law went after political cases, and was drawn into the enforcement. Instead of simply closing rackets that allegations of corruption around the arms deal, generate illegal income, the central objective has become to attack the flow of criminal profits after leading to the arrest and conviction of Shabir Shaik.71 they have been earned.77 Yet the DSO also came under criticism for its tactics, South Africa eagerly embraced the approach cherry picking cases and perceived political agenda. of attacking criminal profits, or the proceeds of Despite the recommendations of the Khampepe crime. In 1992 the Drugs and Drug Trafficking Act Commission (2006)72 to retain the Scorpions, the was promulgated. De Koker argues that this law DSO was disbanded in 2008 and incorporated into supplemented common law, and broadened the the SAPS. It was replaced by the Directorate for criminalisation of money laundering to include those Priority Crimes Investigation (DPCI), known by the who did not report suspicious transactions related 73 moniker ‘the Hawks’. to drug trafficking.78 The Proceeds of Crime Act While the removal of specialised units can arguably 76 of 1996 broadened the scope of the statutory be justified in context, the loss of skills impacted laundering provisions to all types of offences, and on efforts to combat serious organised crime.74 followed international conventions that sought to Furthermore, the failure of the executive to appoint combat organised crime by following financial flows. police commissioners (who arguably should be In 1998, the Prevention of Organised Crime Act career policemen) worthy of the position has (POCA) was passed. Strongly influenced by the impacted on leadership within the police. The last Racketeer Influenced and Corrupt Organizations Act two commissioners were dismissed on corruption (RICO), in the United States, POCA was a dedicated charges, and the leadership of the current police piece of legislation to limit organised crime and commissioner has come under criticism, not least for was touted as integral to fighting both organised 79 the . Divisions within the police and commercial crime. It is possible to use POCA have become politicised, and this has taken its toll across a broad range of criminal activities, and on the reputation of the SAPS.75 Crime Intelligence, according to Mujuzi POCA is aimed ‘at dealing with a wide range of criminal activities, some of which are an important unit in relation to the investigation quite commercial in nature’. He further states that the of organised crime, has been used on multiple Constitutional Court held that ‘the wording of POCA occasions to further political ends, resulting in a as a whole makes it clear that its ambit is not in fact virtual collapse of the division.76 limited to so-called “organised crime offences”’ and Changes in enforcement may have had some that ‘the primary object of POCA is to remove the success in increasing police capacity. However, incentive for criminal activity’.80 the demise of specialist bodies such as the Using ‘follow the money’ and/or ‘proceeds of crime’ Scorpions has had serious ramifications for the approaches and financial penalties to prosecute police’s ability to complete sophisticated organised criminals is a common law enforcement tactic,81 crime investigations and to root out corruption in and POCA follows this tradition to ‘take the profit enforcement bodies, which is imperative in limiting out of crime’. It is argued that these approaches, organised crime. Despite the limitations described along with more global cooperation, have made it here, legislative reforms provide a strong basis for the increasingly difficult to move money across borders state to combat organised crime, as described in the and to launder illicit financial flows.82 POCA has been next section of the article. successfully used in a number of commercial crimes

68 institute for security studies as well as in more traditional gang activities. Its strong the Protection of Constitutional Democracy against forfeiture laws have enabled the state to confiscate Terrorist and Related Activities Act of 2004. anything from cars and houses to multimillion rand While globalisation is touted as a cause of organised businesses. crime and transnational organised crime, one of Following proceeds of crime as an investigative South Africa’s success stories over the last 20 years strategy has become popular with crime lies in the use of ‘follow the money’ approaches, investigators, partly because it changes the standard global cooperation and the harsh line taken on of proof required.83 Moreover, asset forfeiture also forfeiture laws. If one analyses the implementation of provides finances to continue to investigate cases, as money laundering laws and the work of the Financial Intelligence Centre (FIC), it is possible to see the a portion of the confiscated assets is used to fund the quantitative effectiveness of measures taken by the investigation.84 In order to strengthen the ability of the South African government. According to the FIC state to follow illicit money flows, the Asset Forfeiture annual report, ‘[i]nvestment in the FIC’s work also Unit (AFU) was established in May 1999 in the Office yields tangible gains for public finances’. During of the National Director of Public Prosecutions. 2012/13, the FIC had available funds of R245,3 In line with POCA, a number of laws and by-laws million, but recovered R1,171 billion for the fiscus as were passed to set stronger regulations against a result of its efforts. This represents a value adding money laundering and the proceeds of crime. growth on investment of 377% for the South African These included the Financial Intelligence Centre Act taxpayer.89 The steady increase in the FIC’s ability to 38 of 2001 and the Financial Intelligence Centre detect illicit financial flows is illustrated by Figure 2. Amendment Act 11 of 2008 (FICA). The origins Figure 2: Suspicious transaction reports, 2002/3– of FICA can be traced back to 1996, when the 2012/1390 South African Law Commission published a Money 147 744 Laundering Control Bill as part of a report entitled Money laundering and related matters.85 An analysis 150 000 of money laundering laws by Goredema reveals that, 125 000 after the flurry of activity in the early 2000s as the 100 000 53 506 75 000 36 990

South African state set up legislation, regulations 29 411 24 850 22 762 21 466 50 000 19 793 15 757

and sector-specific guidelines, by 2004 criminalising 7 480

25 000 991 money laundering was substantially complete and

0 2002/03 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 2009/10 2010/11 2011/12 20012/13 institutions, primarily in the banking sector, had to comply with a number of prescriptions.86

South Africa has also ratified international 10-year growth conventions and joined the Financial Action Task Force (FATF), and has strong local laws that govern The FIC has also been able to work in tandem with banks and financial institutions. The South African other bodies to provide financial intelligence, and has Revenue Service (SARS) is a well-run institution been integral to a number of convictions and arrests. and its regulatory and enforcement arm is highly In general, South Africa’s anti-money laundering regarded.87 South Africa also has a strict exchange (AML) framework compares favourably with models control system that determines compliance with in place in the European Union and United Kingdom. exchange control regulations; De Koker argues Furthermore, both the SAPS and prosecuting bodies that ‘[t]his system has certainly made South Africa are increasingly adept at using legislation such as a less attractive destination for foreign criminals’.88 POCA to combat crime. Furthermore, post-9/11 concerns over terrorism have increased the strength of governments to follow Despite this, analysts such as Naylor remain critical money, and in South Africa this is legislated through of these approaches, citing ineffectiveness and a

SA Crime Quarterly No. 48 • june 2014 69 concern over civil liberties. In many proceeds of crime Scorpions and the former anti-corruption agency of cases the onus is on the state to prove a balance the SAPS.97 of probability rather than beyond reasonable doubt. Over the past 20 years the South African state has This in turn has made it easier for law enforcement put in place measures that could significantly limit officials to pursue cases where there is little evidence. organised crime. The legislation remains strong and Furthermore, in South Africa ‘follow the money’ it is continually updated. Although popular narrative approaches have been unable to pick up on bartering of South Africa as a state being overrun by organised of goods through informal channels such as drugs for criminals seems exaggerated, the failings of the abalone or cattle for cannabis, which has long been state include the removal of successful operations, a mainstay of the industry. It was argued by Gastrow institutions and systems, and failures at the upper that the cannabis trade underpinned the drug trade, echelons of police management. The inability to as cannabis was used as a bartering system. This systematically address these failings will lead to the could explain how foreign drugs were purchased continued existence of, and increases in, organised in South Africa at such a low price, despite the crime in South Africa. exchange rate.91

Conclusion To comment on this article visit http://www.issafrica.org/sacq.php The response by the South African government to organised crime has been mixed. After 1994 the Notes state was faced with an increase in organised crime 1 This can be noted from the response by the media to the case of Radovan Krejcir. A few examples are: Alex Eliseev, that mirrored the experience of many post-transition Radovan Krejcir is just a symptom, Daily Maverick, 18 April 92 societies. At the same time, the new government 2012, http://www.dailymaverick.co.za/opinionista/2012- needed to manage the integration of the security 04-18-radovan-krejcir-is-just-a-symptom/#.UoUXp5SzvR0 (accessed 14 April 2013); Stephanie Findlay, Case of Czech forces and deal with a variety of other dysfunctions gangster reveals South Africa’s dark criminal underworld, caused by the legacy of apartheid. This task was Time Magazine, 27 December 2013, http://world.time. made more difficult by globalisation, liberalisation com/2013/12/27/case-of-czech-gangster-reveals-south- africas-dark-criminal-underworld/ (accessed 1 April 2014); and the weakening of border controls. Since Sam Sole, Krejcir, Gavric – how McMafia came to South then the state has implemented strong measures Africa, Mail & Guardian, 6 January 2012, http://mg.co.za/ against organised crime, including following article/2012-01-06-krejcir-gavric-how-mcmafia-came-to- south-africa (accessed 23 January 2013); Khadija Patel, many of the Financial Action Task Force (FATF) South Africa’s criminal underworld: is the media reporting recommendations93 with regard to money laundering. the real story?, Daily Maverick, 14 November 2013, http:// www.dailymaverick.co.za/article/2013-11-15-south-africas- However, a number of serious challenges remain. criminal-underworld-is-the-media-reporting-the-real-story Research suggests that communities are increasingly (accessed 14 November 2013). turning to informal sources of authority, including 2 Sam Sole, The meaning of Radovan Krejcir, Mail & Guardian, 4 January 2011, http://mg.co.za/article/2011-04-01-the- organised criminals, suggesting a breakdown in meaning-of-radovan-krejcir (accessed 14 March 2014). relations between the police and community.94 3 See Irvin Kinnes, From urban street gangs to criminal Failure to stem this tide is likely to result in the growth empires: the changing face of gangs in the Western Cape, of organised crime in these communities and the Monograph 48, Institute for Security Studies (ISS), June 2000; Peter Gastrow, Organised crime in South Africa – an development of youth gangs into more organised assessment of its nature and origins, Monograph 28, ISS, structures. Similarly, corruption in the police force 1998; Mark Shaw, Organised crime in post-apartheid South remains high and the state has been unable to find an Africa, Paper 28, ISS, 1998, http://www.issafrica.org/ uploads/Paper_28.pdf (accessed 20 June 2014). effective means to limit it. Police have been accused, 4 Using the definition of a criminalised state by Phil Williams, and convicted, of a variety of organised crime who argues that ‘the state itself becomes a continuing activities.95 Without police corruption, organised criminal enterprise’, it is evident that South Africa has crime is unlikely to succeed and it is argued that not reached this level of criminality. See Phil Williams, Transnational Criminal Networks, RAND Corporation, 83, ‘the SAPS actively undermined its corruption control http://www.rand.org/content/dam/rand/pubs/monograph_ mechanisms’96 through, inter alia, disbanding the reports/MR1382/MR1382.ch3.pdf (accessed 3 June 2014).

70 institute for security studies 5 R T Naylor, Follow-the-money methods in crime control 18 C van Onselen, A small matter of a horse?, http:// policy: a study prepared for the Nathanson Centre for libcom.org/history/small-matter-horse-life-nongoloza- the Study of Organized Crime and Corruption, Toronto: mathebula-1867-1948 (accessed 3 June 2014). York University, December 1999, https://www.ncjrs.gov/ 19 Peter Gastrow (ed), Penetrating state and business: nathanson/washout.html (accessed 10 January 2014). organised crime in Southern Africa, Monograph 86, ISS, 6 Internationally, the most common global definition of 2003, http://issafrica.org/pubs/Monographs/No86/Chap1. organised crime is that used in the United Nations pdf (accessed 1 April 2014). Convention against Transnational Organized Crime, which 20 Andre Standing, Organised crime: a study from the Cape describes organised crime groups as ‘[a] structured group Flats, Pretoria: ISS, 2006. of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more 21 Derica Lambrechts, The impact of organised crime on serious crimes or offences established in accordance with social control by the state: a study of in Cape this Convention’. See UN International Convention Against Town, South Africa, PhD thesis, Stellenbosch University, Transnational Organized Crime, Palermo, 2000. Stellenbosch, 2012. 7 For more information of the definitional disputes of organised 22 This was admitted by the SAPS in the recent Khayelitsha crime, see Andre Standing, Rival views of organised crime, Commission of Inquiry opening statements, http://www. Monograph 77, ISS, 2003. khayelitshacommission.org.za/2014-01-29-12-13-54/23- january-2014-opening-statements/179-south-aftican-police- 8 Ibid., 64. service-opening-statement.html (accessed 14 March 2014). 9 Ibid. 23 An example of this corruption was the granting of residency 10 South African Police Service Act 1995, amended in 1997, to mafia banker Vito Palazzolo, in which investigations 2008 and 2012. proved high levels of corruption, including by a cabinet 11 In an interview with a high-level police officer, he stated that minister. For more information, see Hennie van Vuuren, the SAPS worked using the definitions of organised crime Apartheid grand corruption report, Pretoria: ISS, 2006, and gangs in the law. He stated that, while being well aware http://www.issafrica.org/publications/other-publications/ of the definitional disputes among academics and in the apartheid-grand-corruption-report-hennie-van-vuuren judiciary, the SAPS used the law. (accessed 12 February 2014). 12 South African Police Service Amendment Act 2012. 24 Stephen Ellis, Of elephants and men, Journal of Southern 13 The use of the description ‘gang’ has also increased African Studies 20(1) (March 1994). confusion in organised crime debates, according to 25 Ibid. Standing, Rival views of organised crime. More noticeably, 26 See Tony Roshan Samara, Cape Town after apartheid: crime gangs have become entrenched in the Western Cape. The and governance in the divided city, University of Minnesota SAPS estimates that there are three serious prison gangs Press, 2011, http://www.amazon.com/Cape-Town- and 12 serious street gangs in the Western Cape, where after-Apartheid-Governance-ebook/dp/B005HW70RM/ gang-related violence is the most serious and ‘organised’. ref=tmm_kin_swatch_0?_encoding=UTF8&sr=&qid=. These gangs differ substantially from many other small Samara relates a story of how SAPS members Jeremy Veary gangs, although they often interact with them. See South and Andre Lincoln, who were both former ANC operatives, African Police Service, Western Cape annual report were suspended in 2002 for what they believed was their 2012–2013 (2013), 10. investigations into corruption in the force and the force’s 14 Hagan differentiates between people using the term to links to gangs, organised crime and corruption. Some of the describe activities and groups. While Hagan chose to evidence submitted by Lincoln and Veary was gathered from capitalise the group, I will use a collective noun at the end, interviews with former apartheid police operative Eugene de i.e. ‘Organised crime networks’. See F Hagan, ‘Organized Kock. crime’ and ‘organized crime’: indeterminate problems of definition, Trends in Organized Crime 9(4) (2006). 27 Jenni Irish-Qhobosheane, Gentlemen or villains, thugs or heroes? The social economy of organised crime in South 15 Fawzia Cassim, Addressing the challenges posed by Africa, Johannesburg: South African Institute of International cybercrime: a South African perspective, Journal of Affairs (SAIIA), 2006. International Commercial Law and Technology 5(3) (2010), http://www.jiclt.com/index.php/jiclt/article/view/108/106 28 Irvin Kinnes, From urban street gangs to criminal empires: (accessed 10 February 2014). the changing face of gangs in the Western Cape, Monograph 48, ISS, June 2000. 16 See W van Schendel and I Abraham (eds), Illicit flows and criminal things, Indianapolis: Indiana University Press, 2005. 29 Gastrow, Penetrating state and business. See J Picarelli (ed), Selected papers and contributions from 30 Peter Gastrow, Triad societies and Chinese organised crime the international conference on International Organized in South Africa, Paper 48, ISS, 2001. Crime: The African Experience, Courmayeur Mont Blanc, 31 Mark Shaw, West African criminal networks in South and Italy, 10–12 December 2010, http://www.cnpds.it/ Southern Africa, African Affairs 101 (2002). documenti/fb95a6fd7f209916197336323df897de.pdf (accessed 3 June 2014); Jean-Francois Bayart, Stephen Ellis 32 Irish-Qhobosheane, Gentlemen or villains. and Beatrice Hibou, The criminalization of the state in Africa, 33 Kinnes, From urban street gangs to criminal empires, 2000. Oxford: James Currey, 1999. 34 South Africa, The Presidency, Twenty-year review 2014, 17 C van Onselen, Masked raiders, Cape Town: Zebra Press, http://www.thepresidency-dpme.gov.za/news/Pages/20- 2010. Year-Review.aspx (accessed 3 February 2014).

SA Crime Quarterly No. 48 • june 2014 71 35 Petrus C van Duyne, Matjaz Jager, Klaus von Lampe et al. that were based at the SAPS area offices, serving around 20 (eds), Threats and phantoms of organised crime, corruption police stations each, would have their staff and resources and terrorism: critical European perspectives, Nijmegen: Wolf ‘decentralised’ to station level – thereby bolstering local Legal Publishers, 2004, http://www.organized-crime.de/ policing resources. See Johan Burger, The South African kvlMeasuringOC-CCC4.pdf (accessed 3 June 2014). Police Service must renew its focus on specialised units, ISS 36 G Lebeya, Organised crime in the Southern African Today, 31 March 2014, http://www.issafrica.org/iss-today/ Development Community with specific reference to motor the-south-african-police-service-must-renew-its-focus-on- vehicle theft, MA thesis, UNISA, 2009. specialised-units (accessed 2 June 2014). 37 Crime Stats, database, http://www.crimestatssa.com/. 56 Jean Redpath, Leaner and meaner? Restructuring the Detective Service, Monograph 73, ISS, 2002. 38 Ibid. 39 Ibid. 57 Ibid. 40 South African Community Epidemiology Network on Drug 58 Khayelitsha Commission of Inquiry, http://www. Use (SACENDU), Monitoring alcohol and drug abuse khayelitshacommission.org.za/. treatment admissions in South Africa, Phase 34, January to 59 For more information see the testimony of, among others, June 2013, February 2014, http://www.sahealthinfo.co.za/ Colonel Marais at the Khayelitsha Commission of Inquiry on admodule/sacendu/Sacenduphase34.pdf (accessed 10 19 February 2014, http://www.khayelitshacommission.org. June 2014). za/2013-11-10-19-36-33/hearing-transcriptions/phase-one- 41 Standing, Organised crime. hearings.html (accessed 10 June 2014). 42 R T Naylor, Marlboro men, London Review of Books 29(6) 60 For example, the majority opposition party in South Africa, (22 March 2007), http://www.lrb.co.uk/v29/n06/rt-naylor/ the Democratic Alliance, has repeatedly called for the marlboro-men (accessed 23 January 2014). reinstatement of SANAB on the basis that drug crime has increased. However, the increases in arrests could also be 43 For background information on organised crime in the attributed to better policing. Southern African region see Annette Hubschle, Organised crime in Southern Africa: first annual review, ISS, 2010, 61 Shaw, Organised crime in post-apartheid South Africa. http://www.issafrica.org/uploads/OrgCrimeReviewDec2010. 62 South African National Drug Master Plan, February pdf (accessed 2 April 2014). 1999, http://www.dsd.gov.za/cda/dmdocuments/ 44 See Standing, Organised crime; Irish-Qhobosheane, nationaldrugmasterplan.PDF (accessed 10 June 2014). Gentlemen or villains. 63 Interview with senior investigator formerly with the SAPS, 45 Derica Lambrechts, The impact of organised crime on 2013. state social control: organised criminal groups and local 64 Interview with an independent consultant formerly with the governance on the , Cape Town South Africa, SAPS and SADF. Also see Burger, The South African Police Journal of Southern African Studies 38(4) (2012). Service must renew its focus on specialised units. 46 Craig Paterson, Prohibition & resistance: a socio-political 65 L Laniel, Drugs in southern Africa: business as usual, exploration of the changing dynamics of the Southern African UNESCO, 2001, http://laniel.free.fr/INDEXES/PapersIndex/ cannabis trade, c. 1850 – the present, MA thesis, Rhodes issj169ENG.pdf (accessed 3 June 2014). University, Grahamstown, 2009. 66 Ibid. ‘Boere mafia’ in this sense means those who had 47 Liza Grobler, A criminological examination of police political and economic power. Towards the late 1980s, criminality, PhD thesis, UNISA, 2009. tightly organised and ethnically based organised crime 48 Naylor, Follow-the-money methods in crime control policy. emerged in the form of the Boere mafia (literally ‘farmers 49 The Presidency, Twenty-year review 2014. mafia’). Involved in a range of criminal activities, these groups 50 Ibid. were soon infiltrated and broken by the police. Significantly, however, the Boere mafia appeared to recruit former 51 Among the problems was an exodus of senior SAPS members of the security forces and had right-wing political personnel and an increase in poorly trained new recruits. connections. See Shaw, Organised crime in post-apartheid William R Pruitt, The progress of democratic policing in post- South Africa. apartheid South Africa, African Journal of Criminology and Justice Studies 4(1) (2010), 116. Also see Shaw, Organised 67 Redpath, Leaner and meaner. crime in post-apartheid South Africa. 68 Antony Altbeker, Justice through specialisation? The case 52 Peter Gastrow, Organised crime in South Africa – an of the specialised commercial crimes court, Monograph 76, assessment of its nature and origins, Monograph 28, ISS, ISS, 2003,http://www.issafrica.org/uploads/Mono76.pdf 1998. (accessed 1 April 2014). 53 Ibid. 69 Willie Hofmeyer, The role of specialist units in the NPA, presentation at NPA Stakeholder Conference, 2007, www. 54 Moses Montesh, A critical analysis of the crime investigative npa.gov.za/UploadedFiles/Willie%20H%20final.pp (accessed system within the South African criminal justice system: a comparative study, PhD thesis, UNISA, 2007, 70. 10 March 2014). 55 Johan Burger quotes former commissioner Jackie Selebi in 70 Joey Berning and Moses Montesh, Countering corruption 2006 as saying that ‘the restructuring of the police will lead in South Africa: the rise and fall of the Scorpions and the to a redeployment [that] would see a substantial increase in Hawks, South African Crime Quarterly 39 (2012), 3–9. staff at police stations’. The idea was that specialised units 71 Ibid.

72 institute for security studies 72 Prince Mashele, The Khampepe Commission: the future of 87 Lindo Xulu, SARS a beacon of good governance, efficiency, the Scorpions at stake, Paper 126, ISS, 2006, http://www. Timeslive, 6 October 2013, http://www.bdlive.co.za/ issafrica.org/uploads/Paper126pdf.pdf (accessed 12 January economy/2013/10/06/sars-a-beacon-of-good-governance- 2014). efficiency (accessed 10 January 2014). 73 Ibid. 88 It should be noted that this differs significantly from IL van Jaarsveld, who in her thesis argues: ‘This study portrays a 74 Burger, The South African Police Service must renew its grim picture of money laundering control in South Africa. focus on specialised units. Not only has FICA failed to keep abreast with international 75 De Wet Potgieter, SAPS Crime Intelligence: frozen in the AML trends, but key AML obligations, namely customer political winter of Mangaung, Daily Maverick, 29 November identification and suspicious transaction reporting, have 2012, http://www.dailymaverick.co.za/article/2012-11-28- been exposing banks to unnecessary civil liability.’ Il van saps-crime-intelligence-frozen-in-the-political-winter-of- Jaarsveld, Aspects of money laundering in South African law, mangaung/ (accessed 10 June 2014). LD thesis, UNISA, 2011, 686. 76 Johan Burger, A dysfunctional SAPS intelligence division has 89 Financial Intelligence Centre, Annual report 2012/2013, severe implication for reducing crime, ISS Today, 8 October 17, https://www.fic.gov.za/DownloadContent/NEWS/ 2012, http://www.issafrica.org/iss-today/a-dysfunctional- PRESSRELEASE/FIC%20Annual%20Report%202012-13. saps-intelligence-division-has-severe-implications-for- pdf (accessed 2 April 2014). reducing-crime (accessed 1 April 2014). 90 Ibid., 9. 77 Naylor, Follow-the-money methods in crime control policy. 91 Peter Gastrow, Mind blowing: the cannabis trade in Southern 78 Louis de Koker, Chapter 4, in Charles Goredema (ed), Africa, unpublished paper, ISS, 2003, http://www.issafrica. Profiling money laundering in Eastern and Southern Africa, org/uploads/CANNABIS.PDF (accessed 3 June 2014). Monograph 90, ISS, 2003. 92 Standing, Organised crime. 79 POCA has, however, come under extreme criticism: for 93 Financial Intelligence Centre, Annual report 2012/2013. example, former deputy commissioner of the SAPS and 94 Lambrechts, The impact of organised crime, 2012. advocate Godfrey Lebeya, in his PhD thesis on organised crime definitions, states: ‘The POCA is not a model of 95 See Julian Rademeyer and Kate Wilkinson, South Africa’s criminal cops: is the rot far worse than we have been told?, legislative coherence; it is a legislation that may be described AfricaCheck, 27 August 2013, http://africacheck.org/reports/ as half-baked, which requires immediate return to the south-africas-criminal-cops-is-the-rot-far-worse-than-we- legislative oven.’ See Godfrey Lebeya, Defining organised have-been-told/ (accessed 10 June 2014). crime: a comparative analysis, PhD thesis, UNISA, 2012, 119. 96 Irvin Kinnes and Gareth Newham, Freeing the Hawks: why an anti-corruption agency should not be in the SAPS, South 80 J Mujuzi, Ten years of the South African Prevention of African Crime Quarterly 39 (March 2012), 36. Organised Crime Act (1999–2009), what case law tells us, Occasional Paper, Open Society Foundation, 2010, 97 See Gareth Newham and Andrew Faull, Protector or http://osf.org.za/wp/wp-content/uploads/2012/09/CJI_ predator? Tackling police corruption in South Africa, Occasional_Paper_6_Prevention_of_Organised_Crime_Act1. Monograph 182, ISS, 2011. pdf (accessed 20 June 2014). 81 Naylor, Follow-the-money methods in crime control policy. 82 R T Naylor, Wages of crime: black markets, illegal finance and the underworld economy, Itaca: Cornell University Press, 2002. In 1996 South Africa passed the International Cooperation on Criminal Matters Act 1996 (Act 75 of 1996), which made it easier to cooperate with other states for information and extradition and to confiscate the proceeds of crime across borders. 83 Jean Redpath, Forfeiting rights? Assessing South Africa’s asset forfeiture laws, African Security Review 9(5/6) (2000), http://www.issafrica.org/pubs/ASR/9No5And6/Redpath.html (accessed 10 June 2014). 84 Notably, the Department of Forestry and Fisheries has come under attack for being reliant on confiscated abalone. See, A scaley solution to a slimey problem, Noseweek, 1 January 2012. 85 South African Law Commission, Money laundering and related matters, project 104, August 1996, http://www. justice.gov.za/salrc/reports/r_prj104_1996aug.pdf (accessed 10 June 2014). 86 Charles Goredema (ed), Confronting the proceeds of crime in Southern Africa: an introspection, Monograph 132, ISS, 2007, 77.

SA Crime Quarterly No. 48 • june 2014 73

Court support workers speak out

Upholding children’s rights in the criminal justice system

Loraine Townsend, Samantha Waterhouse & Christina Nomdo* [email protected] [email protected] [email protected] http://dx.doi.org/10.4314/sacq.v48i1.7

The prevalence of sexual offences against children in South Africa continues to be among the highest in the world. The quality and accuracy of a child’s testimony is often pivotal to whether cases are prosecuted, and whether justice is done. Child witness programmes assist child victims of sexual abuse to prepare to give consistent, coherent and accurate testimony, and also attempt to ensure that the rights of the child are upheld as enshrined in the various laws, legislative frameworks, directives and instructions that have been introduced since 1994. We draw on information from two studies that sought the perspectives of court support workers to explore whether a child rights-based approach is followed in the criminal justice system (CJS) for child victims of sexual abuse. Findings suggest varying degrees of protection, assistance and support for child victims of sexual abuse during participation in the CJS. The findings revealed that the rights of children to equality, dignity and not to be treated or punished in a cruel, inhuman or degrading way were undermined in many instances. Finally, recommendations are given on ways to mitigate the harsh effects that adversarial court systems have on children’s rights.

Child victims of sexual abuse physical abuse and domestic violence,4 higher rates of substance abuse, binge eating, somatisation, Sexual abuse of children has devastating adverse social and mental health effects on victims.1 Sexual suicidal behaviours, and poor social and interpersonal 5 abuse during childhood has long been associated functioning in adult life. While some child victims of with a range of short- and long-term psychological sexual abuse are resilient and able to lead relatively and behavioural problems such as fear, post- normal lives following the event/s, most often they traumatic stress disorders, poor self-esteem and experience lasting physical, mental and emotional 2,3 anxiety disorders; and the risk of later sexual and harm.6 Not only must they cope with these harmful consequences, but should the case be reported and * Loraine Townsend is a research consultant based at the referred to the criminal justice system (CJS), they are South African Medical Research Council, Cape Town. Samantha Waterhouse heads the Parliamentary Programme at the forced to deal with the trauma of having to repeatedly Community Law Centre, University of the Western Cape. Christina relive the violence by retelling their stories of abuse, Nomdo is the Executive Director of RAPCAN (Resources Aimed at the Prevention of Child Abuse and Neglect). and through in-court testimony.7

SA Crime Quarterly No. 48 • june 2014 75 Extent of sexual offences sexual assault, specific offences against children against children (such as the exposure or display of pornography to a child), and specific offences committed against The prevalence of sexual offences against children persons with mental disabilities, amongst others, into in South Africa continues to be among the highest a single number of ‘sexual offences’. Previously, the in the world. According to the South African Police NPA reported separately on the number of indecent Service (SAPS) Annual report, 63 067 sexual offences assault cases and on the number of rape cases, were recorded in 2012/13; 25 446 of these against according to the common law definitions. children (40.3%).8 It must be noted that the report indicates that the total number of sexual offence Interestingly, the NPA Strategic Plan 2013–2018 cases reported was 63 067 for that period; however, does disaggregate rape from other sexual offences elsewhere in the report the total number of sexual when referring to SAPS reports between 2008 offences against children and adults is given as and 2012, but fails to do so in reference to its own 13 55 374, thus indicating that 46% of offences reported performance. are committed against children.9 In 2008/09 – the last Furthermore, recent NPA reports (2011/12 and known detailed, age-disaggregated data – 39,5% 2012/13) only contain information on the number of of sexual offences committed against children sexual offences cases finalised, and the conviction affected those in the age group of 15 to 17 years, rates. It is unclear from the reports how many 60,5% were committed against children below cases are referred to the NPA by the SAPS.14 In the the age of 15 years, and 29,4% of these sexual 2012/13 reporting period, the NPA indicates that offences involved children aged 0 to 10 years.10 Set it finalised a total of 7 092 sexual offences with a against the knowledge that sexual offences against conviction rate of 65,8%: this indicates convictions children are grossly under-reported and that reported in 4 669 cases.15 This should be considered against cases of sexual offences against children are thus the annual reporting rates provided by the SAPS of considered the tip of the iceberg,11,12 these statistics approximately 65 000 per year. Although we cannot are harrowing, and demand not only concerted track actual convictions against cases reported with prevention efforts but also justice for the child victims. the data available, there is an indication that the finalisation rate is in the region of 11% of the cases Sexual offences data reported to the SAPS, bringing the conviction rate 16 The problem of the lack of disaggregated data on closer to 7,1% of reported cases. sexual offences cases from the SAPS, specifically Vetten et al.’s 2008 study shows that the conviction those involving children, has been compounded by rate for rape tends to be lower than that for other changes in reporting by the Department of Justice sexual offences.17 A study on conviction rates and Constitutional Development (DoJCD) and the published in 2000 that tracked cases through the National Prosecuting Authority (NPA) that do not system indicated that the conviction rate for rape disaggregate conviction data for the various sexual overall was 7% at that stage, with a 9% conviction offences. The changes have negatively affected our rate in rape cases involving children.18 The fact that ability to assess the performance of the criminal there is no difference in the conviction rates over justice system when responding to sexual offences the past 14 years raises the serious question of in general, and sexual offences against children in the actual value of the law reforms and programme particular. developments relating to the prosecution of sexual offences over the past two decades. Subsequent to the promulgation of the Criminal Law [Sexual Offences and Related Matters] Amendment The only matters in which one can glean a Act 32 of 2007 (the Act), the NPA’s annual reports better sense of the percentage of cases that are provide one single figure for conviction rates prosecuted, are those relating to the prosecution regarding the 59 sexual offences contained in the and conviction rates for sexual offences reported to Act. It consolidates information regarding rape and Thuthuzela Care Centres (TCCs). The annual reports

76 institute for security studies include the category ‘% of cases reported at a TCC These two instruments were ratified by South that are referred to court for prosecution’.19 While Africa in 1995 and 2000 respectively, leading to a not contained in the 2011/12 report, the 2012/13 priority for law reform in the country. Various laws, report includes the actual reporting figures to TCCs legislative and policy frameworks, directives and for both of these years. In those years 28 557 and instructions came into being from early 2000 with 33 112 cases were reported at TCCs. The conviction the intention of upholding the rights of all children rate for the 2012/13 period in relation to the number in South Africa, and ensuring their protection from of cases reported in the same period is thus 4,13%. further psychological distress and harm resulting from testifying in open court, in the presence of the In the NPA 2011/12 Annual report the conviction rate accused. given for matters reported to TCCs is slightly lower than the overall conviction rate for sexual offences The Bill of Rights in the Constitution of the Republic in that period. This trend continues in the 2012/13 of South Africa is thus complemented by international report, which shows a conviction rate of 65,8% for all law and given effect by legislation and policy. Section sexual offences and 61% for sexual offences referred 28 of the Constitution specifically addresses the from TCCs.20, 21 Since the purpose of the TCCs is to rights of children.25 It provides the right of children improve the management and prosecution of sexual to freedom from maltreatment, neglect, abuse or offences matters, including conviction rates,22 the fact degradation; to be treated fairly and equitably; and that the conviction rates are lower for cases going to be protected from unfair discrimination on any through the TCCs is worrying and suggests that they grounds. Importantly, section 28(2) of the Constitution are failing in their primary aim. states that: ‘A child’s best interests are of paramount importance in every matter concerning the child.’26 The failure to provide disaggregated data across This is a higher standard than that set in international sexual offences obscures an accurate assessment of law. the performance of the DoJCD and the NPA. It also prevents a proper assessment of the blockages in the Legislative and policy frameworks system, in terms of both investigations and decisions The past 20 years have seen significant changes not to prosecute, and thus hampers the ability to plan in the legislative and policy frameworks relevant to and establish effective strategies to address this poor child rights. These include the Children’s Act 38 of performance. 2005, the Criminal Law [Sexual Offences and Related Developments in law and policy Matters] Amendment Act 32 of 2007 (SOA), and the since 1994 Criminal Procedure Act 51 of 1977.27, 28, 29 Most significant among these in terms of sexual The children’s rights framework offences was the promulgation of the SOA at the in South Africa end of 2007, following a lengthy reform process. The United Nations Convention on the Rights of The SOA includes as one of its objectives to ‘afford the Child and the African Charter on the Rights complainants of sexual offences the maximum and Welfare of the Child recognise a wide range and least traumatising protection that the law of children’s rights. They require member states to can provide.’ This Act introduces or strengthens ensure that legislative, administrative, social and various protective measures to uphold children’s educational measures are taken to protect children rights and to ensure their protection from further from a range of forms of violence, abuse, neglect, psychological distress and harm resulting from maltreatment and exploitation, and to put in place engaging as complainants in sexual offences matters. measures to ensure their realisation.23,24 They also It specifically includes provisions to improve the specifically provide that in judicial and administrative protection of the child testifying in open court in proceedings that affect the child, the child must be the presence of the accused.30 For example, these provided with the opportunity to be heard, either provisions allow for children below the age of 18 directly or through an impartial representative. years to testify outside of the court environment

SA Crime Quarterly No. 48 • june 2014 77 with the assistance of a person who acts as an and inter-sector responses; providing specialised intermediary; or to give evidence in a separate room services in these matters; and ensuring ‘equal and linked to the court room via closed-circuit television; equitable access to quality services’.38 The NPF or to have court proceedings conducted in camera. provides a number of new measures that may improve the implementation of existing laws and In addition, regulations and directives have been policy. Firstly, it recognises a range of factors that developed for police officers and prosecutors when increase the vulnerability of victims ‘due to gender investigating and prosecuting sexual offences power imbalances, age, disability, sexuality and cases.31 Within these regulations and directives cultural dynamics’.39 Secondly, it requires that budget are measures intended to ensure the safety and allocations and expenditure on sexual offences protect the rights of child victims of sexual offences must be separately tracked to monitor this and throughout the criminal justice process. The National ensure sufficient resources are made available.40 It Instruction for police officers when dealing with cases also requires the development of SAQA-accredited of sexual abuse highlights the issue of the particular training, allowing for improved standards in training.41 vulnerability of victims of sexual abuse.32 Other Perhaps most importantly, the NPF provides that portions of this document attempt to ensure that ‘psycho-social services and practical assistance must victims’ rights are protected at all times; for example, be provided as an integrated part of support services taking steps to protect the privacy and dignity of at all stages’.42 Other key developments in the past the victim (section 7 (4)), respecting how victims 20 years include the establishment of specialist describe the event and writing down everything that Sexual Offences Courts (SOCs) in 1993 and the is said (section 5 (3)f and g), interacting with victims introduction of TCCs in 2000. in a non-judgemental way (section 5 (5)), making a thorough and professional investigation of the case Sexual Offences Courts (section 9 (1)), and ensuring the safety of the child Although officially established in 1993, there was 33 (section 9 (2)b). only one SOC based in Wynberg, Cape Town until The directives issued in terms of section 66 (2) 1999. At that stage the DoJCD made a decision to (a) and (c) of the Sexual Offences Act are also roll these courts out across the country by 2003.43 constructed with the particular vulnerability of victims The implementation of this was delayed and the of sexual abuse in mind.34 For example, the directives national strategy to roll out SOCs was only agreed on 44 recommend the selection of dedicated prosecutors in 2003. who are experienced, skilled and sensitised, and that These courts were intended to deal exclusively with prosecutors ‘should endeavour to reduce the trauma sexual offences cases. They included the requirement caused by the complainant’s contact with the CJS by to appoint victim assistants, case managers, court following a sensitive, victim-centred approach’.35 At preparation officials and magistrates dedicated trial, prosecutors should ensure that sexual offence to hear matters in these courts. Each court was cases receive priority and proceedings are expedited, also to be staffed by two prosecutors to improve especially in cases where the complainant is a child. preparation in these matters. In 2005 a blueprint for Furthermore, ‘efforts should be made to ensure the management of these courts was developed, that the complainant and other witnesses wait in a setting out the various requirements for infrastructure comfortable and private victim-friendly environment to minimise distress associated with the court where contact with the accused can be avoided’.36 environment and exposure to the accused in the court building and the court room.45 In September 2013, five years later than it was due, the National Policy Framework on Management At the same time that the blueprint was finalised in of Sexual Offences (NPF) was published in the 2005, a moratorium was called on the establishment Government Gazette.37 The NPF is based on the of SOCs. Subsequently many of the infrastructural principles of ensuring a ‘victim centred approach and staffing gains made with the establishment of the to sexual offences’; adopting multidisciplinary courts were lost.

78 institute for security studies In 2012, a Ministerial Advisory Task Team on the recalling and verbalising events and sometimes Adjudication of Sexual Offence Matters (MATTSO) have difficulty telling adults about their abuse.51, 52 was established. This task team released its report They may be plagued by shame, guilt, fear and/ in August 2013. The report strongly recommended or embarrassment,53 particularly if the perpetrator the re-establishment of SOCs. In addition, the is known to them, which is most often the case.54 MATTSO recommendations are consistent with many Finally, young children may be developmentally of the recommendations made in a submission to unable to disclose abuse or have difficulty in parliament in April 2013 by a group of civil society understanding that what has occurred is in fact organisations working with sexual offence survivors abuse.55 The abuse itself may have hindered their and the CJS.46 normal cognitive and emotional development, affecting their ability to recall and/or relate the In response to the report, the Judicial Matters event/s. Second Amendment Act of 2013 was passed. This provides a legal framework for the establishment of Child witness and child advocacy programmes SOCs.47 At a minimum, this new law safeguards the assist child victims of sexual abuse in preparing for future existence of these courts. However, the Act consistent, coherent and accurate testimony, which does not provide adequate direction to the DoJCD in turn has the potential to affect the outcome of the regarding the pace of implementation of the courts court process. Central to these services is informing and resourcing, nor standards for infrastructure, witnesses about court processes and role players, staffing or functioning of these courts. Without this, reducing secondary victimisation, strengthening there is no assurance that what will be established as victims’ coping strategies, and providing psycho- an SOC is anything more than a name on the door social support and referral to counselling services.56 of the court. Given the history of inconsistencies in In South Africa, court preparation services for children standards in these courts, this is concerning. are largely delivered by non-profit organisations (NPOs), either on site at the courts, or as part of Thuthuzela Care Centres broader psycho-social services provided off-site.57 After the first TCC was established in 2000, the There is no available information on the number of DoJCD has continued to roll out TCCs. By 2012 court preparation personnel employed by NPOs in the DoJCD reported that 30 TCCs had been South Africa. The NPA Annual report for 2012/13 established.48 The NPA plans to increase that number indicates in respect of its Ka Bona Lesedi Court to 60 by the 2017/18 financial year.49 These centres Preparation Programme that there are ‘140 Court are set up as one-stop facilities, housing police, Preparation Official (CPO) posts’ in operation in 76 health and psycho-social support services to assist lower courts and two high courts.58 However, the victims at the point of entry into the system. However, report does not comment on how many posts are very few TCCs do in fact provide psycho-social filled, and it must be noted that these CPOs do services.50 not specialise in sexual offences and undertake preparation of all witnesses. The report goes further Child witness and advocacy programmes to note that these NPA CPOs conducted 91 050 The quality and accuracy of a child’s testimony is witness sessions in the period under review. It does often pivotal in whether cases are prosecuted, and not indicate the actual number of witnesses they whether the court reaches a finding. Yet, research worked with, just the sessions. Nor does it indicate and anecdotal evidence from across the world how many witnesses were children in sexual offences relate how child testimony is often complicated by matters. a number of factors. Most often the nature of child Child Witness Project sexual abuse means that there is little supporting evidence, and the court proceedings are based on In this article, we focus on one child witness support the word of the child against that of the (usually) programme: the Child Witness Project (CWP), adult perpetrator. Children often have difficulty in initiated by Resources Aimed at the Prevention of

SA Crime Quarterly No. 48 • june 2014 79 Child Abuse and Neglect (RAPCAN), which has been study, in mid-2012, face-to-face interviews were providing services to child victims of sexual abuse conducted with the CWP court support workers. and their families in five SOCs in Atlantis, Cape Town, These interviews used a storytelling, oral history Khayelitsha, Paarl and Wynberg since 1999.59 The format rather than a structured interview format. CWP is delivered in cooperation with the National Interviewers asked questions that accessed narrative Prosecuting Authority, the Department of Justice and detail that could not be answered with a simple ‘yes/ Constitutional Development and the Western Cape no’ response. Such questions were designed to elicit Department of Social Development. An average of cognitive, behavioural and emotional content (often 500 children access the programme on a monthly simultaneously), and to give rise to autobiographical basis. The CWP service is provided primarily by accounts of experiences, good and bad, rather than lay court support workers, who are supported and bland generalisations.61 supervised by specialised social workers. Each child In the first study referred to above, 16 court support and his/her caregiver and other family members workers attended a two-day getaway where they may have several interactions with court support were asked to record their most significant case while workers. The CWP court support workers prepare working in the CWP. These reports were written and children for court proceedings, debrief children and shared among participants. Information was shared families after testimony in court, and follow up with voluntarily, and the court support workers gave their children after the completion of the case. The CWP permission to use extracts from the written reports. also works hard to ensure that the environment in As this was an internal team building exercise, ethics court is conducive to children’s comfort and safety approval was not sought. by providing child-friendly physical spaces such as separate waiting rooms and playrooms at each court. In the second study referred to above, researchers All CWP court support workers have the necessary randomly and independently selected one court aptitude as well as previous experience working with support worker from each of the five courts out of the approximately 20 who worked in the CWP. All children, and have completed a three-week training of the five court support workers approached were course provided by RAPCAN. willing to be interviewed. After written, informed Research methodology consent was obtained, court support workers were interviewed by an experienced researcher. Interview This article draws on two studies that sought the guides were used to lead the conversations, with perspectives of the CWP’s court support workers to questions designed to encourage participants to examine whether a child rights-based approach is think about their behaviours and emotions in relation followed in the CJS for child victims of sexual abuse. to their experiences of the CJS, as well as how they Both studies were cross-sectional and employed related to the people they encountered and the a qualitative approach for data collection.60 This physical spaces in which the interactions occurred. method was deemed appropriate because the CWP All interviews were conducted in participants’ own court support workers interact not only with child language and were audio-recorded, transcribed victims and caregivers but with all role players in the and translated where applicable. Original recordings CJS with whom child victims and caregivers come were checked against the transcripts to ensure into contact. Their experiences and insights position the accuracy of the data capture. This study was them to understand the processes to which child approved by the research ethics committee in the witnesses and their caregivers are subjected while Department of Psychology at the University of Cape interacting with the CJS. Town.

In the first study, conducted in mid-2011, the A thematic content analysis was used for the written perspectives of the CWP court support workers were case reports and the interviews. The case reports sought through their own written reports of cases and transcripts were read repeatedly by both team that had particular salience for them. In the second members independently, and initial broad themes

80 institute for security studies were identified. The team members discussed and a compassionate and empathetic response by the decided upon the themes in consultation and by court support workers to a system they consider mutual agreement. to be dispassionate. Some court support workers expressed anger, despair and helplessness (at Findings the perpetrator, the court system, the children’s Support workers caregivers), suggesting that they were experiencing vicarious trauma.62 There are many role players children engage with from the moment of disclosure to their engagement in Confronting the perpetrator court, as described in this interview: Ideally, victims (especially children) should not need ... report first time to the police ... tell the story to to fear contact or confrontation with perpetrators, the doctor ... tell it to somebody that’s maybe a thereby deepening the trauma inflicted by the initial counsellor ... they have told it to their parents or sexual offence. However, due to a failure of personnel whoever they told first ... So that’s already four diligence or, in certain instances, a lack of resources, people ... come to court ... telling the prosecutor, children are sometimes obliged to confront their 63 so they get tired ... girls are not comfortable telling perpetrators. their story to somebody that is a male ... (Interview: Court support workers talked about their particular CSW 5) frustrations with investigating officers who seem to Court support workers provide a safety net for have no awareness of how being in close proximity the children during (and sometimes after) their to the perpetrator would affect a child, and who engagement with the CJS. They work with child even transport victims to court with the alleged victims as young as five and up to 18 years of age. perpetrators: Their strong commitment to their charges and their Say they come from the farms, that long distance work was seen consistently across the interviews and from [place name] or wherever they come from, in the written reports. sitting with the perpetrator in the car. I can imagine Court support workers ensure that children are well- myself, sitting with somebody in a car that wanted prepared for court appearances. The CWP court to murder me, or did rape me or whatever. So support workers are trained, guided and supervised when the child comes here, you don’t know what to only fulfil this specific role. They are trained not to say. You don’t know where to start, what to talk to elicit the story of the incident, as it may affect the or where to begin with the child, because the child merits of the case; nor give advice outside the scope is so traumatised sitting with that person for an of their knowledge of the court process; nor should hour or hour-and-a-half in the car. (Interview: CSW 4) they impose any religiosity or make contact with the family outside of the court spaces. Despite this Even though transporting children and perpetrators training, court support workers reported that they together may seem efficient or justifiable due to overstepped these roles in some cases, for example limited resources, such practices are in direct providing advice to children and visiting the family of opposition to the principle of the best interests of the abuse victims. child, and are completely unacceptable.

In many cases it was clear that court support workers Children may also come into contact with alleged felt a great deal of empathy for the children. There perpetrators in the court building. As described were also accounts of having bonded closely with earlier, the Criminal Procedures Act does provide for the children, and internalising the trauma experienced children below the age of 18 to testify in a separate by the children. While these behaviours would be room linked to the court via closed-circuit television considered as crossing professional boundaries and/or with the assistance of an intermediary. These and could be the result of insufficient training, measures are intended to protect child witnesses supervision and debriefing, they could also signify from psychological stress caused by testifying

SA Crime Quarterly No. 48 • june 2014 81 in open court, and to alleviate some of the harm same waiting area as the accused. According to the associated with cross-examination. These measures experience of the court support workers interviewed do not, however, take into account the exposure of in this study, measures to create separate waiting children to perpetrators outside the courtroom. Court areas and testifying rooms for children are not support workers described how, in some cases, sufficient protection for traumatised children. children met the perpetrator (or their family) in the I don’t think the court can be child friendly! It’s passages, the public toilets or even in the court. too cold there ... it’s just those benches there ... These experiences make children anxious, while they (Interview: CSW 4) need to be calm and confident if they are to testify against the perpetrator. Contact with the perpetrator With repeated delays and postponements of the trial negatively affects the quality of many children’s date, it is a reality that children experience the cold testimony, unnecessarily traumatises the child, and court environment, and risk the potential to confront also has the potential to impact adversely on the their perpetrators, on multiple occasions. outcome of a case. One court support worker wrote Delays and postponements about this exact experience for a 10-year-old rape victim: Court proceedings are often protracted. Many of the court support workers spoke about how these Die kind was deur die familie van die beskuldige processes were difficult for children to endure. One voorgekeer en daarna wou sy nie verder praat court support worker wrote that ‘[o]ver the next 18 in die hof nie. Met die gevolg dat die man months the case [got] postponed six times’; another vrygespreek is en die saak van die rol is. (The child spoke about how ‘[the children] get tired sitting in was accosted by the family of the accused and one place’. Support workers interviewed in our study after that she did not want to speak in the court. expressed their frustrations about postponements With the result that the man was acquitted and the and delays, and the inability of the court to provide case was taken off the court roll.) timeous information to victims that would shorten In many instances the layout of court buildings makes their stay at court: it impossible for the two parties to avoid each other. Sometimes they come here three times, and they This is exacerbated by the failure of court staff to just sit here the whole morning. ... (the) prosecutor recognise the negative impact of this contact and doesn’t come up and say, listen here, this is what take the necessary measures to prevent it. is happening, the case is going to be postponed. The cold reality of court (Interview: CSW 4)

Court buildings have not been designed to The main role players in the court process should accommodate children who enter as victims or ensure that victims are protected from secondary witnesses. The starkness of the court buildings traumatisation, but their insensitivity or carelessness and rooms intimidate first-time visitors, and often can turn the court process into a painful experience, invoke fear and uncertainty for the children and their filled with anxiety and fear. The opportunity for caregivers. children to connect meaningfully with adults who care can be tainted by their engagement with insensitive The minute they have stepped into that door, there defence lawyers, prosecutors and even magistrates. is that fear. They are on their nerves. It’s like some of them withdraw into themselves. (Interview: CSW Going the extra mile – or inefficiency 2) The investigating officers are important role players in To soften the negative impact of the stark court the CJS and are instrumental in ensuring the child’s environment on children, a number of courts have case is built. The docket with all the statements and established ‘child-friendly’ waiting rooms and evidence that supports the child’s case becomes interview rooms to prevent a situation where the the sole representation of the child’s experience of child waiting for the trial to start has to be in the being abused. It is important that this be as complete

82 institute for security studies a record of the crime as possible. When there are as a consequence of long-term abuse than with any gaps in this record of the crime, the child’s case is fault in her actual testimony. weakened, as these support workers noted: In some cases prosecutors were perceived as It [pertinent evidence] had to be in the docket, but intimidating, reportedly acting in a very harsh was not there, and that is why the perpetrator was manner towards the children whose rights they were being released. (Interview: CSW 4) supposed to uphold and protect. Child support workers felt that prosecutors were re-traumatising Sometimes it is not even the child’s fault that the children by questioning them in a manner that made evidence is incomplete or sometimes the docket them emotional and undermined their ability to gets lost. (Interview: CSW 3) reliably testify in court. One of the support workers The investigating officers are also required to ensure had this to say: that the child is advised of court dates and when he The prosecutor, she is very helpful to the kids, or she must appear in court. Court support workers but sometimes she can also be unhelpful. They in our study spoke of cases in which a child was speak to kids, and sometimes they push them and required in court, but the investigating officer had say, no, you are not telling the truth ... because of forgotten to collect them. However, one support the treatment they [the children] get, they end up worker’s experience with the police and their handling getting emotional so that they can’t handle it any of cases was positive: further. (Interview: CSW 2)

There’s great assistance [from the detectives] Support workers believed that empathy with child because there is support: the police will come to victims was a missing ingredient in the system: them and the police will assist them. The police Maybe the lawyers or even the magistrate can feel will take them here and take them there, so I don’t for the child ... If we feel what the child is feeling, want to put the police down. (Interview: CSW 1) we will change our mindsets. (Interview: CSW 2)

Sensitivity – or jaded callousness Court support workers in our study appreciated the Court support workers work with prosecutors, and role of sensitive prosecutors: jointly they act as the advocates in the court process The court is a very cold place ... it depends on the for children who have witnessed or experienced prosecutor, the one defending that child ... that sexual offences. For the children, these ‘friendly’ prosecutor will tell the child, okay, you don’t need adults will be symbolic of the humanity of the CJS to worry. Don’t worry; everything is going to be and assist in rebuilding trust after the violation fine. You don’t have to fear. Don’t even look at the associated with the sexual offence, which is often perpetrator ... you look at me. (Interview: CSW 2) committed by a trusted adult. They will remember if these adults talked to them respectfully, gave Discussion credence to their experiences, and did the best they Lack of uniformity in services to children could to see that those responsible would be held to Findings from this study suggest varying degrees of account. protection, assistance and support for child victims of The court support workers’ written reports made sexual abuse during participation in the CJS. There reference to how prosecutors and magistrates were mixed reports from participants on the support operate. For instance, one court support worker felt received from investigating officers: some were clearly that a certain prosecutor did not do enough to bring supportive, providing assistance that likely arose from a case to justice. A certain magistrate was seen as sensitivity to the children and their ongoing ordeal/s, insensitive to the difficulties a child witness had with while others seemed to have little regard for them, or testifying, while the child support worker recognised lacked sensitivity. Similarly, while some prosecutors that this had more to do with the child’s mental state did understand the needs of children, others were

SA Crime Quarterly No. 48 • june 2014 83 demeaning and insensitive to the children. There failure to promote the best interests standard. In could be various reasons for this: not knowing the addition, some prosecutors appear to have a poor extent of the impact testifying has on a child, a poor understanding of how a child’s testimony is affected understanding of the ‘best interests of the child’ when testifying in the presence of the accused, and principle, and the low value placed on children in the when exposed to direct cross-examination. CJS. These findings certainly denote unevenness in Repeatedly having children and their caregivers wait the standards applied across state stakeholders in endlessly at the courts, only to be told to return on the criminal justice system. another day, shows great disregard and a certain Gaps in the policy framework that should be setting callousness to the victims of abuse. The findings from these standards, and failures in management this study suggest that the legal and administrative practices to enforce the standards that are set, proceedings involving children were not kept to a exacerbate this inconsistency. The on-again, off-again minimum. The participants spoke about delays in approach to specialised policing units and SOCs has court proceedings, and continual postponements. All further undermined the standardisation of measures spoke about disregard for victims and their families, to better protect the rights of children in the system. and having to wait many hours before being advised Protecting the rights of the child of a postponement. The findings revealed that the rights of children Measuring performance in the who attend court to equality, dignity and not to be management of sexual offences treated or punished in a cruel, inhuman or degrading way, are regularly undermined. Assistance and The findings of this study suggest that there are support for these children most consistently come some instances in which the approach of staff in from court support workers. Yet, in the view of the the criminal justice system, and the application of child support workers, there is a systematic failure protective measures during the trial, may lessen the to protect children from the trauma of having to secondary trauma experienced by children. However, face the perpetrators and their families and the the absence of baseline or current research on this real or imagined threats directed at them in these question means that it is not possible to assess if encounters. the rates of secondary trauma experienced by child victims have dropped in South Africa in response to Defence lawyers’ strategies and efforts to represent developments over the past 20 years. the constitutional rights of accused persons are necessary for the pursuit of justice. However, while In spite of the difficulty posed by the reporting there are provisions in law (such as the use of an and performance statistics currently available, the intermediary to relate the questions posed in court available information on the performance of the to the child) to mitigate the negative impact of this CJS in terms of prosecution and conviction rates on children, these provisions are not uniformly clearly shows that there has been little change in applied. The Constitutional Court found that the the case outcomes. The data available indicate that discretion of the court to apply these provisions is prosecution and conviction rates remain as alarmingly constitutional, but that their application by courts in poor as was the case when they were studied 14 many cases was unconstitutional, due to a failure to years ago.65 apply the best interests standard.64 The Constitutional Court also underlined the importance of giving The failure to disaggregate police and prosecution effect to the constitutional values of human dignity, data into age categories and types of offences equality and freedom in these matters. The failure obfuscates the ability to assess the actual of prosecutors and presiding officers to intervene performance of the CJS. Further, the unavailability of when the cross-examination by defence lawyers information on the attrition of cases from the reporting becomes unnecessarily badgering, or undermines and prosecution stages means that strategies to the child’s dignity, is concerning and represents a address problems in this regard cannot be devised.

84 institute for security studies Information regarding how the relationship between and/or outside of court. The court support workers the accused and the victim is linked to the case spoke about children becoming confused, recanting outcomes (i.e. is there a correlation between the testimony and/or appearing untrustworthy when relationship between the accused and the child and harangued by defence attorneys. While the justice detection, prosecution and conviction rates?) may system is adversarial, ways to mitigate the harsh also assist in the planning of prevention strategies effects that adversarial court systems have on and responses, such as training interventions to children’s rights to dignity, privacy and freedom from improve the management of cases at all stages. At harm must be given serious consideration. We offer this stage, no such information is routinely collected. the following recommendations:

Budget allocation to sexual offences • SAPS statistics should include age-disaggregated It is currently not possible to assess how resources data to allow for year-on-year monitoring of in the SAPS, the NPA or the DoJCD are allocated reported sexual offences against children.68 In with the intent to improve the investigation and addition, the different types of sexual offences, and prosecution of sexual offences. An assessment of in particular rape and sexual assault, should be the information available in the NPA performance reported separately. plans shows that the intention to improve SOCs is • NPA performance data must include information not likely to be realised, given the budgets available. on the numbers of cases referred for prosecution For example, SOCs should be staffed by two against the numbers of cases prosecuted. Similar prosecutors, however, the NPA reports that it does to the above recommendation, these figures should not have sufficient funds to pay the current number of be age-disaggregated and various sexual offences prosecutor posts and that the compensation budget should be separately reported. is under ‘severe stress’.66 In addition, while the MATTSO report calls for the establishment of SOCs, • The allocation of budget to sexual offences matters it goes on to suggest that the SOCs that will be by the SAPS, the NPA and the DoJCD must be developed are all already resourced to the standards delineated in annual performance plans. Spending set and there is no indication of a plan to increase must be reported in the annual reports. resources for the further establishment of these • To promote uniformity in protecting children’s courts.67 The failure to commit funds to the further rights, and to guard against regression where roll-out of SOCs will perpetuate the unevenness good standards are developed, standards for of services to child victims in different parts of the infrastructure and staffing in SOCs, in line with the country. recommendations of the MATTSO report, must Conclusion be incorporated into a formal policy framework or law. This can be achieved by including these The law reform and policy developments undertaken standards in regulations to the Judicial Matters to date clearly have not had the desired impact on case outcomes, and too many children continue to Second Amendment Act of 2013. Although this Act experience avoidable secondary victimisation when makes the development of regulations discretional traversing the CJS. The impact of the NPF and the and consequently sets no time frames for their extent to which recommendations in the MATTSO development, the DoJCD must be urged to finalise report are implemented may be critical factors in these urgently. changing the experiences that children have in • Court support workers should have ongoing, what has remained to date a stubbornly negative expert professional psycho-social training and environment for child victims. supervision. This would provide them with the The participants in our study reported children’s skills necessary to avoid crossing professional discomfort, fear and trauma when confronting the boundaries, vicarious trauma and ‘compassion perpetrator either in court, in the court buildings fatigue’.69

SA Crime Quarterly No. 48 • june 2014 85 • A greater investment should be made to improve officers to play a stronger role to promote the the quality of investigations and forensic evidence rights of child victims. Careful selection and quality collection. training of presiding officers prior to their hearing sexual offences matters can improve the level of • The robust implementation of existing instructions protection provided to children within the current for police officials when dealing with sexual constitutional framework. offences is needed. This includes systematic monitoring of their implementation. The National • The use of video testimony of child victims, either Instructions for police officers when dealing with within evidence-based prosecutions or within the child victims of sexual abuse should be extended current system, should be further investigated or to include measures to ensure the child’s rights considered. The child’s entire testimony could be to privacy, dignity, and safety once s/he enters video recorded and replayed during trial without the court system.70 Specifically, rules regarding necessitating the child’s presence in court. transporting child witnesses and perpetrators to • The NPF and the recommendations made in the court need to be clearly spelled out. MATTSO report must be implemented as a matter • Police officers should have training in the particular of urgency. psychological vulnerability of child victims of sexual This study has alerted us to the sometimes callous abuse and their caregivers, and in how to question attitudes of adult role players towards child victims. and take statements from children in a sensitive The training of court role players needs to be placed manner. within a psycho-social context to promote increased • The quality of prosecution of sexual offences levels of sensitivity. This would go a long way to against children should be strengthened. This ensuring consistently good and empathetic service could be done through improving the skills and delivery, including regular supervision of adherence to knowledge of prosecutors in the technical as the objective of limiting the secondary traumatisation well as the emotional aspects of prosecution and of child victims. working with child victims of trauma.71 Not only training, but improved recruitment and selection Acknowledgements processes for prosecutors would go a long We would like to thank the court support workers for way to strengthen the quality of prosecution of sharing their insights with us, and Blanche Rezant for sexual offences against children. To this end the the interviews in the second part of the study. recommendation contained in the Directives for Prosecutors – that dedicated prosecutors who are To comment on this article visit experienced, skilled and sensitised – are selected, http://www.issafrica.org/sacq.php should be adhered to, without exception.72 Notes • The CJS is essentially ‘adversarial’ in nature; this 1 J Barth, L Bernetz, E Heim et al., The current prevalence means that the victim’s needs and rights carry the of child sexual abuse worldwide: a systematic review and least weight in relation to those of the accused and meta-analysis, International Journal of Public Health (2012), http://link.springer.com/article/10.1007/s00038-012-0426- the state. To undertake reforms that would increase 1#page-1 (accessed 23 May 2014). the ‘inquisitorial’ nature of the system would allow 2 K Kendall-Tackett, L Williams and D Finkelor, Impact of for an increased focus on the victim’s needs. At sexual abuse on children: a review and synthesis of recent empirical studies, Psychological Bulletin 113 (1995), its simplest level, this means that the magistrate 164–180. can play a greater role in protecting the rights of 3 R Maniglio, Child sexual abuse in the etiology of anxiety the victim, within the constitutional framework, yet disorders. A systematic review of reviews, Trauma Violence sometimes at the expense of entrenched rules and Abuse 14(2) (2013), 96–112. of procedure, for the purpose of uncovering the 4 K L Dunkle, R K Jewkes, R C Brown et al., Prevalence and patterns of gender-based violence and revictimization among truth. Even without reform to the nature of the women attending antenatal clinics in Soweto, South Africa, system, there is sufficient precedent for presiding American Journal of Epidemiology 60 (2004), 230–239.

86 institute for security studies 5 M Polusny and V Follette, Long-term correlates of child 24 African Charter on the Rights and Welfare of the Child, sexual abuse: theory and review of empirical literature, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force 29 Applied Preventive Psychology 4 (1995), 143–166. November 1999. 6 D Finkelhor, H Turner, R Ormrod et al., Children’s exposure to 25 Constitution of the Republic of South Africa Act 1996 (Act violence: a comprehensive national survey, Juvenile Justice 108 of 1996). Bulletin (2009), www.ojp.usdoj.gov (accessed 15 October 26 Criminal Law (Sexual Offences and Related Matters) 2013). Amendment Act 2007 (Act 32 of 2007), Section 2. 7 G S Goodman, E P Taub, D P H Jones et al., Testifying in 27 Children’s Act 2005 (Act 38 of 2005). criminal court: emotional effects on child sexual assault 28 Criminal Law (Sexual Offences and Related Matters) victims, Monographs of the Society for Research in Child Amendment Act 2007. Development 57(5) (1992). 29 Criminal Procedures Act 1977 (Act 51 of 1977). 8 This statistic was accessed from the South African Police 30 Criminal Law (Sexual Offences and Related Matters) Service (SAPS), Annual report 2012–2013, 114, 117, www. Amendment Act 2007. saps.gov.za. A search of various websites did not reveal any age-disaggregated data for this reporting period. 31 National Instruction on Sexual Offences 2008, South African Government Gazette, 15 August 2008, http://www.tlac.org. 9 Ibid., 116. za/wp-content/uploads/2012/01/national-instruction-sexual- 10 SAPS, Crime report 2010/2011, http://www.saps.gov.za/ offences-act.pdf (accessed 30 November 2013). statistics/reports/crimestats/2011/crime_situation_sa.pdf 32 Ibid. (accessed 10 November 2013). 33 Ibid. 11 P Proudlock (ed), South Africa’s progress in realising children’s rights: a law review, Cape Town: Children’s 34 Sexual Offences Act 2007. Institute, University of Cape Town and Save the Children 35 National Instruction on Sexual Offences 2008, 1 (31). South Africa, 2014. 36 National Instruction on Sexual Offences 2008, 7 (31). 12 S Mathews, L Loots, Y Sikweyiya et al., Sexual abuse, in A 37 Section 62(2)(a) and (b) required that it be tabled within one van Niekerk, S Suffla and M Seedat (eds), Crime, violence year of the Act coming into effect. and injury in South Africa: 21st century solutions for child 38 National Policy Framework on Management of Sexual safety, Houghton: Psychological Society of South Africa, Offences: Criminal Law [Sexual Offences and Related 2012, 84–96, www.mrc.ac.za/crime/Chapter7.pdf (accessed Matters] Amendment Act 2007 (Act 32 of 2007), Section 27 March 2014). 62(1), Government Gazette 36804, 21–23. 13 National Prosecuting Authority (NPA), The NPA strategic plan 39 Ibid., 21. 2013–2018 (2013), 14. 40 Ibid., 26. 14 NPA, Annual report 2011–2012 (2013), 40. 41 Ibid., 61. 15 NPA, Annual report 2012–2013, pages 32 and 30 42 Ibid., 27. respectively for total number and percentage. 43 Shukumisa Campaign, Submission to the Portfolio 16 These are estimates. In order to track the actual conviction Committee on Justice and Constitutional Development rate it is necessary to track and monitor outcomes in actual on the strategic plans and budget of the Department of cases over a period of a number of years. Justice and Constitutional Development and the National 17 L Vetten, R Jewkes, R Sigsworth et al., Tracking justice: the Prosecuting Authority, 2013, 5–6. attrition of rape cases through the criminal justice system 44 Ibid. in Gauteng, Johannesburg: Tshwaranang Legal Advocacy Centre, South African Medical Research Council and Centre 45 Ibid. for the Study of Violence and Reconciliation, 2008. 46 Ibid. 18 R Paschke and H Sherwin, Quantitative research report on 47 Judicial Matters Second Amendment Act 2013 (Act 43 of sentencing, Institute of Criminology, University of Cape Town, 2013). 2000. 48 NPA, Annual report 2011–2012, 18. 19 NPA, Annual report 2011–2012, 39. 49 NPA, Strategic plan 2013–2018, 22. 20 A total of 60,7% in 2011/12 of TCC matters vs 65,1% 50 Shukumisa Campaign, Submission to the Portfolio overall. NPA, Annual report 2011–2012, 40. Committee on Justice and Constitutional Development, 7. 21 NPA, Annual report 2012–2013, 30, 55. 51 G S Goodman and A Melinder, Child witness research and 22 NPA, Thuthuzela Care Centres – turning victims into forensic interviews of young children: a review, Legal and survivors, brochure, http://www.npa.gov.za/UploadedFiles/ Criminological Psychology 12 (2007), 1–19. THUTHUZELA%20Brochure%20New.pdf (accessed 12 June 52 E R DeVoe and K C Faller, The characteristics of disclosure 2014). among children who may have been sexually abused, Child 23 United Nations Convention on the Rights of the Child, Maltreatment 4 (1999), 217–227. adopted 20 November 1989, G.A. Res. 44/25, UN GAOR, 53 L Leander, S A Christianson and P A Granhag, A sexual 44th Sess. Supp. No. 49, UN Doc. A/44/49 (1989), entered abuse case study. Children’s memories and reports, into force 2 September 1990. Psychiatry, Psychology and Law 14 (2007), 120–129.

SA Crime Quarterly No. 48 • june 2014 87 54 M L Paine and D Hansen, Factors influencing children to self- disclose sexual abuse, Clinical Psychology Review 22 (2002), 271–295. 55 T B Goodman-Brown, R S Edelstein, G S Goosman et al., Why children tell: a model of children’s disclosure of sexual abuse, Child Abuse & Neglect 27 (2003), 525–540. 56 F Nagia-Luiddy & S Waterhouse, Oiling the wheels of justice? The RAPCAN child witness project, SA Crime Quarterly 29 (September 2009), 35–43. 57 Ibid., 56. These services are delivered by the Teddy Bear Clinic for Abused Children, Childline South Africa, Rape Crisis Cape Town, the Institute for Child Witness Research and Training, Resources Aimed at Prevention of Child Abuse and Neglect (RAPCAN), and a few smaller projects nationally. The NPA introduced a national court preparation service in 2006. 58 NPA, Annual report 2012–2013, 56. 59 See F Nagia-Luiddy & S Waterhouse, Oiling the wheels of justice?, 56, for a comprehensive description of the RAPCAN Child Witness Project. 60 The studies were funded by the Open Society Foundation of South Africa. The Western Cape Department of Social Development provided funding for supplementary research. 61 H A Liddle & A Hogue. A family-based, developmental- ecological preventive intervention for high-risk adolescents, Journal of Marital and Family Therapy 26(3) (2000), 265-79. 62 Rape Crisis, Don’t hide speak out, 2014, http://rapecrisis. org.za/information-for-survivors/vicarious-trauma/ (accessed 2 April 2014). 63 S Waterhouse, The impact of changing criminal justice responses to child victims of sexual abuse. Good intentions, questionable outcomes, Criminal Justice Initiative, Open Society Foundation for South Africa, 2008. 64 Summary of the Constitutional Court judgement in Director of Public Prosecutions v Minister for Justice and Constitutional Development and Others ([2009] ZACC 8), Centre for Child Law, University of Pretoria, referring to para. 83 of the judgement. 65 R Paschke and H Sherwin, Quantitative research report on sentencing, 18. 66 NPA, Strategic plan 2013–2018, 24. 67 Department of Justice and Constitutional Development, Report of the Ministerial Advisory Task Team on the Adjudication of Sexual Offences Matters, August 2013, 15. 68 C Gould, J Burger & G Newham, The SAPS crime statistics. What they tell us – and what they don’t, SA Crime Quarterly 42 (2012), 3–12. 69 Rape Crisis, Don’t hide speak out, 61. 70 National Instruction on Sexual Offences 2008, 31. 71 This recommendation is also made by Proudlock, South Africa’s progress in realising children’s rights, 11. 72 As contained in the Sexual Offences Act 2007, 26.

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Reviewing 20 years of criminal justice in South Africa South A f r i c a n CRIME QUA RT E R LY No. 48 | June 2014 Previous issues Stacy Moreland analyses judgements in rape ISS Pretoria cases in the We s t e r n Cape, finding that Block C, Brooklyn Court p a t r i a rchal notions of gender still inform 361 Veale Street judgements in rape case. Heidi Barnes writes New Muckleneuk a case note on the Constitutional Court case F v Minister of Safety and Security. Alexander Pretoria, South Africa Hiropoulos and Jeremy Porter demonstrate Tel: +27 12 346 9500 how Geographic Information Systems can be Fax:+27 12 460 0998 used, along with crime pattern theory, to [email protected] analyse police crime data. Geoff Harris, Crispin Hemson & Sylvia Kaye report on a conference ISS Addis Ababa held in Durban in mid-2013 about measures to 5th Floor, Get House Building reduce violence in schools; and Hema Africa Avenue H a r govan reviews the latetest edition of Victimology in South Africa by Robert Peacock Addis Ababa, Ethiopia (ed). Tel: +251 11 515 6320 Fax: +251 11 515 6449 [email protected]

Andrew Faull responds to Herrick and Charman ISS Dakar (SACQ 45), delving into the daily liquor policing 4th Floor, Immeuble Atryum in the Western Cape. He looks beyond policing Route de Ouakam for solutions to alcohol-related harms. Claudia F o re s t e r- Towne considers how race and Dakar, Senegal gender influence police reservists' views about Tel: +221 33 860 3304/42 their work. Elrena Van der Spuy assesses the Fax: +221 33 860 3343 contribution of ethnographers and auto- [email protected] biographies to our understanding of policing in South Africa. Megan Govender looks at how ISS Nairobi crime statistics and the national victims of crime Braeside Gardens surveys are used to support opposing views of off Muthangari Road public perception about the levels of crime. The edition concludes with a discussion between Lavington, Nairobi, Kenya Oliver Owen (Nigeria) and Andrew Faull (South Tel: +254 20 266 7208 Africa) about the differences in how police Fax: +254 20 266 7198 performance in the two countries. [email protected] www.issafrica.org > Twenty years of punishment (and democracy) in South Africa > Political policing then and now > Criminal justice policy and remand detention since 1994 > Insider views on the Judicial Inspectorate for Correctional Serv i c e s > Addressing corruption in South Africa > Responses to organised crime in a democratic South Africa > Upholding children's rights in the criminal justice system