Many South Africans have lamented the challenges faced by our citizens who are suffering under ever-declining economic prospects and increasing insecurity. Institutions that are meant to be ensuring effective governance over the exit and entry of goods and people, such as Home Affairs, have been riddled with unprofessionalism, corruption, disorganisation and criminality, all constituting a lack of adherence to the rule of law. If this is allowed to continue, the scenes we have observed in Soweto, Johannesburg and Pretoria will escalate.
The unleashing of mob violence against foreigners, suspected drug dealers and all manner of “alleged criminals” is a reaction of people who no longer trust in the state’s willingness to fulfil its duty of upholding and applying the law. Mob violence is not the answer in a civilised society. However, where the criminal justice system is non-functioning, and where the police cannot be trusted to fulfil their duties; people will apply uncivilised solutions.
In the founding provisions of our Constitution, section 1(c) highlights the Constitution’s supremacy and the “Rule of Law”. The rule of law is one of the most fundamental values of nation-states without which their functioning is near impossible. According to Billy Last, CEO of LexisNexis SA, when the rule of law is weak, essentials such as health, shelter, safety, employment and education are often absent and “suffocating poverty, debilitating illness, human rights violations and government corruption stand in their place”.
In South Africa, we have failed to regard the rule of law as a sacrosanct principle, which can be viewed in the destruction of the criminal justice system by former President Jacob Zuma through his State Capture scheme that is estimated to have cost the country up to R1-trillion.
The wheels of justice in South Africa do not merely run slowly; they do not move at all. Criminals, whether they hold the highest offices, or if they are ordinary citizens, appear to have full confidence in their ability to evade prosecution. The failure of the National Prosecuting Authority on cases such as the Estina Dairy Farm is a key example. Another issue people can point to is a lack of consequences for most of the people implicated in the VBS Mutual Bank heist.
The failure to uphold the principle of the rule of law has resulted in less secure lives and property, as well as threats to people’s economic freedom by public and private actors behaving with impunity as they steal from taxes and people’s savings. Legitimate protests have turned into mob rule in our communities, with no due recourse from the police and the justice system, ensuring a continued cycle of violence and social discord.
We have witnessed public buildings such as schools or libraries being burnt to the ground. We have seen the looting of shops in full view of media cameras and in front of police. The violence that has accompanied xenophobia in South Africa is mainly in part because of a vacuum created by a weak state, and an absence of law.
Xenophobia in South Africa has been a growing scourge for decades since the advent of democracy. The challenges and frictions between foreigners and nationals are not unique to South Africa, but are a common phenomenon across the world where there is high migration. In South Africa, a society that is already filled with violence, and where the criminality of all sorts is largely unpunished, xenophobia evolved from rhetorical slurs, such as makwerekwere aimed at entrenching the “otherness” of people from across the continent, to mob violence.
Mob violence in the country has also not only been directed at foreigners as vigilantism has been used as an unofficial system of justice against suspected criminals who are South African citizens. An article by Lizette Lancaster in Daily Maverick titled Is mob violence out of control in South Africa? states that “two people a day die as a result of vigilante or group attacks in South Africa”. Lancaster, who is a manager of the Crime Hub at the Pretoria-based think tank, the Institute for Security Studies, also points to figures by the South African Police Service (SAPS) that show that 846 out of 20,336 murders in the 2017/2018 crime statistics were associated with mob justice.
Mob justice is something that does not happen in the leafy suburbs, but in poor communities who feel abandoned by the state, unable to secure themselves via private security companies, and with low levels of trust in the police or court systems. With a feeling that they are on their own, they turn to local devices to solve their problems.
With an increasing flow of mass migration into the urban centres of Gauteng, the friction between locals and foreigners has been intensified as a result of real or perceived competition over limited economic opportunities. Poor South Africans look around their communities and see businesses run by non-South Africans, and the perception is that these are businesses that could have been run by locals.
In the informal job sector, small business owners, or those who hire domestic workers have been willing to take in non-South Africans who are desperate to work even at wages unbearable to some South Africans. Those hiring foreigners have defended their decisions with generalisations that South Africans “are lazy”. Poor South Africans, just like foreigners, have been “othered” and labelled by the more privileged classes of South Africa.
The idea that black South Africans are self-hating, and that their treatment of black foreigners is because of the lack of pan-Africanist education, misses the reality that poor black South Africans and poor foreigners occupy the same spaces. The targeting of African foreigners instead of Europeans is simply because of proximity.
South Africans are also aware of the challenges across the borders, of black Africans fleeing failing states to come into South Africa legally and illegally. The failures at a national level to have a grasp of the number of people coming into the country, and clarity on legal and illegal immigration has become a source of irritation to locals. The idea that the people they are competing with economically may be illegally in the country is a major source of enmity. Many immigrants are in the same state of vulnerability as them, people that the justice system does not protect and ignores, and this provides an opportunity for criminal acts against foreigners.
South Africa is a nation where the social contract between the state and its citizens is lying in tatters. The social contract has been shredded by corruption, the failure to deliver services and improve the South Africans’ lot as promised by the ANC’s “A better life for all” campaign.
Besides the failure of the state, we have the empty platitudes that come from the upper classes of the country, those who don’t compete at the unskilled level with masses of foreign labour. They mostly benefit from the opportunity of paying lower wages and having cheap meals at restaurants. These cheap platitudes are an attempt to shut down any criticism of immigration with statements that it primarily benefits the economy, without stating who benefits and who bears the brunt of the costs. These platitudes also do not confront the call for respect of the rule of law from a variety of voices when it comes to immigration into the country.
People like Joburg mayor Herman Mashaba have been labelled xenophobes for calling for action in terms of clear documentation of who is in the City of Johannesburg, foreign or local. However, one should ask what is wrong in what was being asked by Mashaba? Why don’t we all support the call in his Operation Buyamthetho? Mashaba was also lambasted for stopping a street trader who was moving a cow carcass on a shopping trolley in violation of by-laws. When the police move to remove illegal occupations in the country, often in areas unsuitable for human settlements, those in the media living far from informal settles deride such actions.
We need to respect the application of the rule of law to deal with mob violence, and issues such as drugs, or counterfeits goods, no matter who is responsible for such illegal acts. Doing this removes the central issue against which the xenophobic mobs are rallying. It will also send a strong warning to those organising these lynch mobs that they will also face the full might of the law when transgressing.
When we look at the issue of better border control, we should be concerned about the various hazards our nation faces, including drug trafficking, poaching, weapons smuggling, counterfeit goods, illicit financial flows and all manner of black market behaviour. There have been lax controls on our borders with no proper funding and equipping of those tasked with securing them, ultimately endangering communities, industries and jobs.
In the matter of immigration, we should not believe it is immune to the principles of the rule of law. Immigration needs to be fair and equitably enforced. Not doing so goes against another significant value enshrined in our Constitution, which is “equality before the law”. The actions by former Home Affairs Minister Malusi Gigaba in granting the Gupta family citizenship without following due process highlights the different standards set by our institutions of governance.
Getting permits at Home Affairs whether for asylum seekers or high-skilled labour is a nightmare which has been orchestrated to drive people into the black market where they bribe the officials who should be doing their salaried jobs. Those who come into our country illegally cannot be treated differently from other citizens and non-citizens who break the law. Those who take the law into their own hands, instead of allowing authorised institutions to do their work must also be duly punished.
Wanting better border control is not closing oneself to the world any more than putting up a fence around one’s property is. Properly functioning borders will facilitate the movement of goods and people enabling trade, something critical for our economic growth. It is essential that South Africa continues to be properly plugged into the global trade system in a manner that secures our national interest and promotes prosperity for our people.
South Africa should be a leading destination of choice in the world, not merely for tourists and businesses, but for the best and brightest from around the globe, as well as from Africa. We need leading skills to come and take part in building a premier-league country. This requires the commitment to upholding our constitutional values and responsibilities, which include the rule of law, to create a society that will accommodate these people and ensure they attain the security needed to thrive.
Billy Last also says: “The single factor that will turn a vulnerable or destitute person into a victim of human trafficking is the basic absence of the rule of law.”
We need to consider the rights of South Africans, and even non-South Africans, including their security when it comes to the sanctity of the rule of law. We need to operate in a manner that strengthens this country and its people’s future, the protection of livelihoods, and their economic prosperity.
This requires us not to take the principle of the rule of law lightly. DM
Sinethemba Zonke is a political risk analyst who comments on South Africa and African developments. He shares his views on his blog Prometheus Unbound