Civil liberties in South Africa are at grave risk, with police brutality and state violence being commonplace and, seemingly, untamed. It is vital to understand why.

Where a new constitutional dispensation promised in Sharpeville in 1996 that state power would no longer be used to bully, to intimidate, to threaten, to hurt, and to subdue, the reality is that the South African government is one that has arrogantly lost sight of its constitutional and moral obligations in its pursuit of intoxicating power.

The symbolism of signing the Constitution into life in Sharpeville has turned into a cruel mockery of the transformational hope that saw the South African Police Force re-christened the South African Police Service. The audacity of state power has grown over recent years aggressively, infringing on individual freedoms and, as a consequence, undermining human dignity.

The tragic death of Saul Mkhize in 1983, hauntingly retold in John Kane-Berman’s memoir Between Two Fires, is a kind of predecessor of the continued state cruelty and indifference citizens have come to endure in the years since the advent of the democratic era.

The incident of the blatantly unlawful assault of three people by members of the Deputy President’s VIP Protection Unit on the N1 highway, captured on video and distributed across media, is only the latest visible symptom of a brutal state arrogance that defines the ideological pursuit of state control through state power.

Like its apartheid predecessor, the ANC in government has shown its unquenchable appetite for control and power. It should not surprise us that governments eager to trample on civil liberties ultimately stomp with rage on the head of a defenceless citizen in broad daylight. It’s the arrogance in claiming that the State has the ability and pseudo-divine right to have control and power that, given time, becomes violent.

When the pursuit is control, accountability becomes an obstacle that those in power cannot allow. And thus, one of the first victims of the ANC’s assault on South Africans, to gain control, was accountability. Whilst ANC lip service, with likely some bona fide intentions, allowed the codification of accountability mechanisms into the new constitutional democracy, it didn’t take long for the ANC to neutralise these checks on centralised state power.

Short-lived devolution

Gone was the short-lived devolution of prosecutorial authority to the provinces. Come the Arms Deal, the credibility of the offices of the Public Protector and the Auditor-General was essentially decimated, and the first ANC blows landed on the National Prosecuting Authority (NPA), from which the entity is yet to recover.

The cadres, the crooks, and the cronies, after all, look after each other.

Retrospectively, the unfolding of the ANC’s campaign in government to gain control through systemic state capture is almost spectacular in its strategic and tactical execution.

The Arms Deal undoubtedly became the most dramatic scene of the opening act of state capture, yet on the legislative front, laws like the National Environmental Management Act were laying the groundwork for an administrative state of significant power.

On the policy front, cadre deployment enabled the capture of the State’s administrative operations.

On the regulatory front, preferential procurement and BEE opened vast commercial channels for state power over industry. With each of these steps, the ANC in government grew more powerful and arrogant – an arrogance that seeps into an entire ecosystem where might is right. An arrogance that destroys accountability and makes citizens into subjects.

Police accountability, the idea of service as opposed to force, is in a critical state today – assaulted and tortured by the ANC government over three decades. The brief hope that law enforcement under the ANC would be about service rather than force is a forgotten trinket of history.

The Independent Police Investigative Directorate (IPID), the citizenry’s main vehicle for pursuing police accountability, is a shadow of what it needs to be. Budget constraints, with skills poverty and understaffing as consequences, have sapped its ability to uphold its mandate. Revealing the priorities of the ANC government, whilst almost two billion rand was budgeted in 2021/22 for VIP protection of government officials, IPID, over the same period, received less than a quarter of that – just under R354 million.

Deaths in police custody

During this time, 5 295 new IPID cases were opened, of which 233 were related to deaths in police custody, 410 to deaths caused by police action, 192 to incidents of torture by police, 99 to incidents of rape by police officers, 2 to incidents of rape in police custody, and 3 407 to assault. 4 015 cases were investigated and referred to SAPS and the NPA. 239 disciplinary convictions were obtained. 53 police officers were dismissed from service. Only 20 criminal convictions were obtained. (That’s more than R17 million spent per conviction by the taxpayer, but who’s counting?)

The Marikana Massacre, in which 34 miners were shot and killed by the police, is a grim example of the erosion of accountability mechanisms in South African politics. Despite the public outcry and the establishment of a commission of inquiry (that cost the South African taxpayer north of R150 million), no arrest or prosecution of any police officer or police superior or official has materialised.

The ANC government’s response to the Covid-19 pandemic, itself marked by corruption and a lack of transparency and accountability, led to the unlawful use of lethal and disproportionate force by law enforcement to coerce obedience to even the pettiest lockdown regulations.

Petrus Miggels died, according to eyewitnesses, after being beaten with a hammer by police for the crime of buying beer. Collins Khoza died, according to eyewitnesses, after being beaten to death for the crime of having a drink with a friend in his own yard. Ntando Sigasa died five days after allegedly being beaten by police with batons for the crime of walking home during lockdown. No-one has been prosecuted for any of these deaths.

From Andries Tatane, bleeding to death on camera, to Marikana, to Petrus Miggels, Collins Khoza, to Adane Emmanuel (who, according to eyewitnesses, was beaten by police with a bolt cutter and died later of his injuries – no-one prosecuted) and Robyn Montsumi (found hanging by her neck in a police cell – no-one prosecuted) – these, and countless other anonymous cases, write in blood the story of the broken promise of Sharpeville in 1996.

Force, not service.

These incidents and the lives they wrecked expose the hollowness of the ANC’s promises of service, of a good story to tell. They uncover the survival of the sinister ideological pursuit of control that murdered Saul Mkhize forty years ago.

State arrogance

This same brutal ideology of state arrogance that left Jimmy Kruger unmoved by the chilling murder of Steve Biko was captured on video a week ago when Paul Mashatile’s thugs stomped on the skulls of unconscious men on the side of the road. Dit laat hul koud. Unmoved, the thugs drove off. And ordinary South Africans look from pig to man and man to pig, and it is impossible to say which is which.

It’s time for us as citizens to get real about the fundamental cause of this fatal state arrogance and the sinister ideology of control that underpins it.

‘Civil Liberty in South Africa: Freedom Under Law Three Decades After Apartheid’ , a report released this week by the Institute of Race Relations (IRR), lays bare the scaffolding of warped principle and perverse law that has allowed the erosion of constitutional protections of civil liberties.

Constitutional limits on state power should have been upheld.  In the jurisprudence of our country, as defined and often defiled by the judicial appointees and deployees of the ANC’s political elite – the Judge Hlophes of this world –, defence mechanisms like section 36 of the Constitution have too often become justifications for the exercise of state power.

A system, the report argues, wherein the protection, rather than the limitation, of rights is primary, is central to the public interest. This conclusion is a stark reminder of the importance of defending South Africa’s civil liberties as the only viable defence against the violent arrogance of a state that stomps on the skull of an unconscious citizen in a chilling echo of our country’s dark past.

The promise of a state in service of the people of South Africa cannot be left battered and broken. The state’s thugs cannot be allowed to arrogantly strut away, holster their guns, and siren in service of those in charge of this mafia state.

Accountability must, must be restored – starting with political accountability at the ballot box. Naïve faith in our Constitution must be replaced by a vigour to see its prescriptions implemented rather than venerated or waited upon for self-enforcement. The Constitution is no guarantee of justice, but a tool to pursue it. We must use it as such.

Checks and balances

Future South African governments, which should exist uncomfortably without guarantee of office unless merited, must be led by the citizen to rebuild and then uphold the checks and balances of the constitutional settlement. Cadres and cronies, the protectors of cruelty and crooks, must be mercilessly evicted from all state offices.

The abilities of people like Glynnis Breytenbach, Willie Hofmeyr, and Vusi Pikoli must be harnessed to rebuild a gangster-resistant state. Expertise from around the world must be secured to save IPID and the NPA from the minions and cadres that have turned constitutional bloodhounds into political lap dogs.

Only through a clinical focus on merit-based appointments can a sustainable framework of law and order be rebuilt – fundamental to installing effective measures to hold police officers accountable for their actions, improving the quality and effectiveness of investigations into police misconduct, and fostering a culture of respect for human rights within law enforcement and our justice system.

A harmonious, free, non-racial, and prosperous South Africa is possible. But this can only be achieved if South Africans are willing to engage with the substance of what has gone wrong and the role of all citizens in ending this chapter of state arrogance.

Only then can the country begin to heal from the cancer of state violence and move towards a future where all citizens are treated with dignity and respect.

[Image: Vik M from Pixabay]

The views of the writer are not necessarily the views of the Daily Friend or the IRR

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Hermann Pretorius studied law and opera before entering politics and, latterly, joining the IRR as an analyst. He is presently the IRR’s Head of Strategic Communication. He describes himself as a Protestant, landless, Anglophilic, Afrikaans classical liberal.