Governing through Crime in South Africa

The Politics of Race and Class in Neoliberalizing Regimes

Gail Super

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317125495
• Edition: 1
• Topic: Droit
• Subtopic: Droit pénal

This book deals with the historic transition to democracy in South Africa and its impact upon crime and punishment. It examines how the problem of crime has emerged as a major issue to be governed in post-apartheid South Africa. Having undergone a dramatic transition from authoritarianism to democracy, from a white minority to black majority government, South Africa provides rich material on the role that political authority, and challenges to it, play in the construction of crime and criminality. As such, the study is about the socio-cultural and political significance of crime and punishment in the context of a change of regime. The work uses the South African case study to examine a question of wider interest, namely the politics of punishment and race in neoliberalizing regimes. It provides interesting and illuminating empirical material to the broader debate on crime control in post-welfare/neoliberalizing/post transition polities.

Chapter 1
Starting the Conversation

This book is an exploration of how crime and government intersect in post-apartheid South Africa. The main question that I ask is how the transition to democracy in South Africa has affected government discourse, perceptions and treatment of ‘criminals’. One of my goals is to encourage recognition of the deeply political nature of crime policies and how they both reflect and distribute power in society (Gottschalk 2006: 254). Normatively we might have expected the African National Congress (ANC) to be against the prison and in favour of an approach to crime which actively seeks to do something about structural causes. We might have expected it to be reintegrative and inclusive in its choice of criminal justice policies. Yet this has not been the case and, in South Africa today, imprisonment comprises a central plank of the government’s crime policies. The fact that the ANC has adopted punitive penal policies alongside neoliberal economic and social policies is at odds with what it promised and what was expected from a socialist-orientated revolutionary organization with precursors, roots and connections to grassroots democratic movements.

By way of a historical case study, from 1976 to 2004, the book examines how the problem of crime has emerged as a major issue to be governed in post-apartheid South Africa. Having undergone a dramatic transition from authoritarianism to democracy, from a white minority Nationalist Party (NP) government to a black majority ANC one, South Africa provides rich material on the role that political authority, and challenges to it, play in the construction of crime and criminality. The book is not about what causes crime or how to control it but is about its socio-cultural and political significance. Looking at this in the context of a change in regime is immensely productive and it is hoped that adding a perspective from a freshly democratized country will provide some interesting and illuminating empirical material to the broader debate on crime control in post-welfare/neoliberalizing/post-transition polities (Bright 1996, Cohen 1985, De Georgi 2006, Dixon 2000, 2004a, 2004b, 2004c, Feeley and Simon 1992, Garland 1996, 2001, Gordon 2001, 2006, Hannah-Moffat 2000, 2005, Lacey and Zedner 1995, O’Malley 1992, 1996, 1999, 2004a, 2004b, Nelken 2010, Parenti 1999, Pratt 2000, Rose 2001, Samara 2003, 2005, 2011, Simon 2001, 2007, Sparks 2000, 2003, Wacquant 2001a, 2001b, 2007, 2009, Van Zyl Smit and Van Der Spuy 2004, Young 1999).

Official Criminology

The empirical focus of the book is on state discourse about crime and criminality (‘official criminology’) within the context of social, political and economic shifts. I treat official discourse about crime – Commissions of Inquiry, statements by politicians, political party manifestos, white papers, laws and annual departmental reports from the Justice, Prisons, Welfare and Police departments, as well as parliamentary debates on crime and other policies (economic, social, budgetary) – as a type of political text designed to shape governmental practice and its public perception. I used police reports to ascertain whether and how the perceived, officially reported crime rates and patterns were changing. These crime rates, together with the moral panics precipitated by their release (or non-release), have influenced the government to adopt certain crime policies, as I discuss in Chapter 2.

Since official criminology does not arise in a vacuum, and being cognizant of the danger of overprivileging governing authorities and giving an overly smooth and coherent account of what is in fact contested, my analysis includes the policy positions of relevant think tanks, such as the Human Sciences Research Council and the Institute for Security Studies, articles in criminal justice journals, newspaper articles and secondary literature. I have also conducted selective in-depth interviews with certain key people1 and I researched the policy papers of the ANC prior to its assuming the mantle of government.

These texts serve as my portal – to analyse how things have changed or not, and to see how policy-makers construct subject populations (such as the pass law offender, the parole violator, the supercriminal, the illegal immigrant) and the causes of crime. This is part of the larger story that I am telling, about the politics of crime, the politics of rhetoric, in the context of the politics of change from apartheid to post-apartheid, from white minority to black majority rule, from authoritarianism to democracy. Being a ‘law and society’ project this book uses the study of society to understand official criminology, and also uses official criminology to understand society (Garland 2010: 16). As Garland (2010: 16) states, it ‘works in both directions – studying a social context to better understand a legal institution, but also using a legal institution to better understand a society’. Thus, running alongside the study of official criminology is a sub-theme about South African society, which seeks to use crime, and what the state says and does about it, as a lens through which to view South Africa and the unequal social relations that are still very much a part it.

In tracing how various political rationalities intersect with, configure and reconfigure penal policies, the book analyses the ways in which crime policies are based on certain political assumptions, use racial or class categories and are linked to specific political projects. Two of the themes that emerge in Chapter 2 are the changing relationship between crime and politics as the ANC went from being a resistance organization to becoming the government, and the changing relationship between crime and race as blacks went from being the oppressed group to being the governing group. A large part of what I set out to do here is to trace the ironies and hypocrisies involved and how these relationships changed over time.

Revealing of more than just rhetoric, official discourse is not a mere empty gesture but a form of communication and as such is performative (Singh 2005a, 2005b, 2008, Garland 2010). As a rationality of rule, it is inextricably linked with broader issues of political authority. Thus, for example, in Chapter 6 I discuss the way that the ANC government justifies its existence in terms of a nationalist discourse that is rooted in its liberation struggle credentials. This also doubles up as a call to all morally upright South African citizens to take up the new struggle against criminals, discussed in Chapter 5. As such, official criminology functions as a technique of political and ideological hegemony and plays a symbolic and instrumental role that goes well beyond its actual effect on crime rates or its ability to prevent crime (if this could be measured) (Garland 1990, Melossi and Pavarini 1981, Foucault 1977).

‘Political Criminology’2

Politics and crime are connected on many levels. The most obvious connections lie in the political appointments of criminal justice officials, the politicization of crime policies and prosecutorial decisions based on overtly political considerations. In a context where patronage and corruption are very present, politics and power enter into the very act of deciding what and who to prosecute, particularly when public figures such as the Commissioner of Police are charged with fraud, sentenced to a term of imprisonment after a protracted trial (with his legal defence being paid for by the state), only to be released on medical parole after serving only a year, most of it in the prison hospital (to which most ordinary prisoners do not have access, due to massive overcrowding); where the current President, after being acquitted in a rape trial, was charged with fraud, only to have the charges withdrawn by the National Prosecuting Authority in a highly controversial decision; and where criminal prosecutions are interwoven with national intelligence and political power struggles between various high-level ANC politicians.3

In addition, shifting definitions of crime and punishment are both shaping of, and shaped by, political developments, which are in turn rooted in the microcosms of societal power structures (Bright 1996, Davis and Slabbert 1985, Foucault 1977, 1982, 1991, Hay 1976, Thompson 1975, Tonry 2009, Wacquant 2001, 2007, 2009). Indeed, the perception of crime is as much about ‘cultural politics’ (Garland 2010: 7) as about crime, and crime itself is a fluid, mutating concept dependent on cultural norms (Durkheim 1982). In post-apartheid South Africa miscegenation and homosexuality are no longer criminal offences and black people are free to live and move where they like yet prison sentences lengthened with the dismantling of apartheid and have continued to do so in the ‘new’ South Africa. Thanks to mandatory minimum sentencing and other non-discretionary sentencing laws, overcrowding has worsened and the ratio of social workers and psychologists to prisoners is woefully inadequate to address even basic needs. I discuss this in Chapter 6.

As discussed in Chapter 2, police annual reports still refer to ‘unrest’ as a veiled acknowledgement of the intersections between crime control policies and political legitimacy. This chapter also tracks how the Nationalist Party government portrayed political opponents as ordinary criminals and how the ANC government has decoupled crime from politics – no longer recognizing political justifications for committing crimes – whilst the problem of crime has itself become an intensely politicized issue, playing out in election campaigns and parliamentary debates. These linkages between ‘political authority and crime control policy’ (Scheingold 1998: 875) are often sublimated and not discussed in mainstream criminology.

Time Frame

I start in 1976 because at this point the South African government experienced crises in both the political and economic spheres and it started to deploy different techniques of rule. The political and economic reforms embarked upon by the South African government during this period represented an attempt by the Nationalist Party to create a compliant black middle and working class with changes in the production of knowledge about crime, the move towards technical approaches and a greater emphasis on science both reinforcing and reflective of this shift (Marais 2001, Tikly 2003).

No doubt influenced by the anti-communist rhetoric percolating in the USA, the fear of the black masses embracing communism was fierce and the 16 June 1976 uprising was seen as the start of a ‘revolution … being led by young Black militants who are socialists and communists’ (Hansard 1977a col: 806). By 1977, apartheid, and particularly the heavy state regulation of the South African economy, started to be criticized by both English and Afrikaner capital. The official opposition United Party accused the NP government of practising a type of socialism and there was much parliamentary debate about a ‘free economy’ and what this meant for South Africa. The NP claimed that it was free whereas the United Party, which equated capitalism with freedom, stated that it was not and that South Africa needed a ‘responsible body of people among those Black people who [would] stand up for the private enterprise system’ (Hansard 1977a: col: 806). It accused the NP of being a party that ‘stands for the big state, the big tax, the big operation by the state at the cost of the individual’ (Hansard 1977a col: 801).

From the early 1980s the Nationalist Party government implemented certain neoliberal reforms. These reforms were aimed at repairing a faltering hegemony without actually changing the racialized class structure of South African society. They included the privatization of public transport and housing in black townships and the recognition of a limited form of black self-government. These specific South African reforms occurred within the context of ‘transnationally networked neoliberalization projects’ (Brenner et al. 2010a: 212). The latter included an ideological assault against the British and US style welfare states and anti-communist rhetoric that was fast attaining hegemony in the West. Initially based on a critique of Keynesianism, they resulted in a series of ‘market-centric’ commodifying reforms (Brenner et al. 2010a: 210) in the specific contexts of countries such as West Germany, Chile, the UK and the USA. As Brenner et al. (2010a: 212) describe them, these projects were ‘an intellectual amalgam’ and ‘unevenly developed ideological form’ precisely because they drew on an ‘eclectic, uneven, net-worked and historically specific intellectual-political legacy’. Thus it is important to see how the mid-1970s crisis of apartheid rule in South Africa, which resulted in a shift away from ‘racial Fordism’4 towards privatization, coalesced very well with transnationally percolating neoliberalized discourse within a specific South African context. Neoliberalization processes in South Africa have been directly shaped by racist ideologies, such as the ‘rooi gevaar’ (red/communist danger) and ‘swart gevaar’ (black nationalist danger), and this was part of the institutional landscape inherited by the post-apartheid government.

The research for the book ends in 2004 but I bring my story up to date in the Epilogue. I chose 2004 as a cut-off date because this was ten years after the first democratic elections and Mbeki, Mandela’s successor, had just completed his first term of office. By this stage the various figures of the criminal: the drug addict, pass law offender, rondloper (street walker), vagrant and ‘idle and undesirable’, which used to be important discursive categories, had become decentred by the notions of ‘organized crime’, the ‘supercriminal’ and the ‘corporatized’ (Standing 2006: 57) street gang, in terms of a discourse which wore the double-breasted mantle of both managerialism and punitivism. I discuss this in Chapter 4. It was also the time at which, with the appointment of the Jali Commission of Inquiry Into Alleged Incidents of Corruption, Maladministration, Violence or Intimidation in the Department of Correctional Services, a glaring disjuncture became apparent between the ideals and visions of the ‘new’ South Africa and the very disappointing (and corrupt) reality of what was happening in practice. Like Singh (2008: 4) I do not use the term ‘post-apartheid’ in the sense of the ‘end of apartheid and beginning of a new liberal democratic era’ but as being indicative of the emergence of a new political rationality, in a governmentalizing South Africa. My use of the terms ‘new’ and ‘post’ is with a sense of irony in view of the continuities between apartheid and post-apartheid rule.

By 2004 it was very clear that certain powerful blocs within a deeply fractured ANC were sympathetic to market-based policies, with almost one-third of its National Executive Committee members serving as directors of Black Economic Empowerment (BEE) companies and social justice being ‘peripheralized’ (Marais 2011: 5, Bond 2000, McCord 2007, Peet 2002, Terreblanche 2012). The idea was that BEE would create a ‘black capitalist class’ that would operate together with the state to create a developmental state (Marais 2011: 142). Despite improved access to schools, water, health care, sanitation, electricity and housing subsidies, the proportion of households living in informal settlements is still high, urbanization has increased and there has been an increase in the ‘scale of need’ (Marais 2011: 213). Not all local authorities provide free water, and registering as an indigent is a time-consuming and bureaucratic process. Social welfare is targeted and means-tested, and aimed mainly at children, the disabled and the elderly, i.e. it is not universal (Marais 2011: 242). According to Marais the reason that many households are ineligible is because the grants were not intended to combat poverty but are instead based on the assumption that all healthy adults should be able to earn a living through working (Marais 2011: 243). Yet labour market inequality has risen in the post-apartheid era – due to rising unemployment and increasing earnings inequality (Leibbrandt et al. 2010, Everett 2010). Between 1970 and 1995 South Africa’s labour force grew by almost 4 million but only 1 million jobs were created. Yet the South African government has adopted a narrow definition of unemployment inasmuch as it does not count anyone who has not ‘taken active steps’ to find employment in the four weeks prior to being surveyed and also not people who report earning from ‘begging’, ‘hunting’ or growing their own food (Marais 2011: 176). Even using a narrow definition of unemployment, one in four working-age South Africans are not employed. If one counts workers who have given up looking for jobs then by the 2000s unemployment ranged from to 34 per cent to 40 per cent (Marais 2011: 177). Public Works Programmes (PWPs) are meant to serve as ‘ways into formal employment’ yet the jobs are temporary and as such do not address the ‘crisis of the labour market’ (Marais 2011: 192, Phillips 2004).

At the same time the ANC government has actively sought to build a ‘new’ South Africa along nationalist lines, incorporating the formerly politically excluded black masses. Part of this has entailed a punitive crackdown approach to crime couched in the rhetoric of the liberation struggle. This has occurred alongside the incorporation of blacks into a rampant consumer culture. Coupled with unemployment and inequality the tensions and contradictions in South African society are plain to see – ranging from the Gucci Black Economic Empowerment millionaires, the old white money associated with the mansions in the leafy suburbs, through to the vendors of the Big Issue and ubiquitous beggars who populate the traffic lights in the central urban and affluent suburban areas.

Shifts and Continuities

Whilst one way of characterizing official criminology in South Africa is in terms of a shift from ‘community based crime prevention’/‘social crime prevention’ in the early heydays of the democratic transition to ‘crime control’ and a ‘getting tough’ approach from 1998 on (Rauch 2007, Van Zyl Smit and Van der Spuy 2004), this book is concerned with overlaps and how different discourses can in fact coexist quite ‘peacefully’. Highlighting the contingent nature of the discourse on crime and punishment in terms of an analysis which is centred on the interconnectedness of discourses avoids the risk of linearity inherent in viewing the penal complex in terms of stages and phases, as opposed to linkages, points of intersections, messiness and recursivity. The book questions those accounts (Rauch 2002, 2007, Van Zyl Smit and Van der Spuy 2004, Samara 2003, 2005, 2011) which divide the South African penal field into phases of rainbow nation style restorative justice immediately post-1994, followed by a punitive period from 1998 on. In fact, as I discuss in Chapter 5 it is interesting how restorative justice has been lauded by parties on both the right and the left, for different reasons. Even in the immediate pre- and post-1994 days of rainbow nation discourse criminals were excluded from the polity and regarded as a threat to democracy. The fact that the ANC deployed the death penalty against those found guilty of treason again...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Prologue
• 1 Starting the Conversation
• 2 The Spectacle of Crime in the ‘New’ South Africa
• 3 Explanations for Crime
• 4 Constructions of Criminality
• 5 Crime Prevention and the Turn to the Community
• 6 Punishment and the Body
• Epilogue and Concluding Thoughts
• Appendix: List of Interviewees
• Bibliography
• Index