In political theory, there are many competing conceptions of the role of the state. In the classical liberal tradition, the most basic function of government is to protect and uphold the rights and freedoms of citizens.
The state is necessary for maintaining the rule of law, enforcing contracts and securing private property rights. The state is also tasked with preventing criminality and defending the security of the person. The government must use its considerable power to “preserve the peace” and enable individuals to flourish.
However, the reality in SA is that government is failing to uphold even its most basic duties towards citizens. The most obvious manifestation of this failure is in SA’s high levels of violent crime. According to fourth quarter 2023 data from the SA Police Service, an average of 86 people are murdered every day in SA, three of whom are children, and there are 136 rape cases reported every day.
These numbers only reflect reported crimes. As disillusionment with the police grows, weary victims become less inclined to report crimes committed against them. The criminal justice system is increasingly incapable of ensuring successful convictions against purported criminals. In 2023 there was a mere 8% conviction rate, mostly due to the inability of the police to maintain its overall detective and forensics capabilities. Corruption is rife in the police, and many case dockets are made to “disappear”.
The National Prosecuting Authority is understaffed and unable to successfully prosecute most cases due to insufficient evidence, political interference or a lack of available prosecutors. Criminals are also getting smarter and more organised. Criminal syndicates hold the mining and construction industries to ransom, while heavily armed gangs attack and loot trucks on the national highways or pilfer copper cables from critical infrastructure. Senior detectives and witnesses are assassinated, and prosecutors are intimidated.
SA’s long, porous border makes it difficult to control who enters the country. This makes the country vulnerable to multinational organised crime. According to the Global Initiative Against Transnational Crime, SA now ranks seventh in its Global Organised Crime Index 2023 (12 places up from 19th in 2021).
In a violent society such as SA you would expect the government to prioritise building additional prisons to house the growing number of offenders. In fact, SA’s prisons are on average 40% over capacity.
While criminals deserve to be punished for their crimes, these overcrowded conditions are intolerable in a decent society, where violent criminals mix freely with those being held for minor offences. Convicts, as wards of the state, are entitled to basic protection from the incredible violence often inflicted upon them by the serial rapists and murderers who share their prison cells.
Moreover, countless numbers of people have been imprisoned by the police despite not being formally charged with any crimes. Too poor to pay bail, they remain caught in legal purgatory until their case can be heard before our overburdened courts.
The paradox is that as the SA government fails to deal with the violent crime epidemic, it simultaneously expands the scope of what “crime” means, thereby criminalising our private lives and businesses in a desperate attempt to preserve the pretence of state authority.
This makes life even more difficult for honest, hardworking South Africans who are already struggling to get by in a slowing economy. Meanwhile, the real violent criminals operate with impunity.
It is this paradox that has prompted the Free Market Foundation (FMF) to start the Section 12 Initiative, so named in reference to section 12 of the constitution, which entrenches the freedom and security of the person. This provision recognises your inalienable right to be protected from violence committed either by the state itself or by other actors in society.
Electoral agenda
South Africans seem to have become numb to the country’s chronically high levels of violence. The Section 12 Initiative therefore aims to put violent crime firmly on the electoral agenda in the run-up to the general elections on May 29.
The initiative also seeks to highlight the urgent need for decriminalisation of SA law to free up the economy from unnecessary rules and regulations that punish law-abiding South Africans while serious violent offenders get off scot-free.
To this end, the Section 12 Initiative recently launched its criminalisation index. The index is still in its early stages of development, but will in time comprehensively quantify the extent of the unnecessary criminalisation that exists in SA’s statutory, regulatory and judicial law.
There are many instances of state overreach highlighted in the index. For example, if you operate a tourist transport service without accreditation by the National Public Transport Regulator you could be imprisoned for up to two years or fined R100,000. A wholesaler could be fined up to R100,000 for not displaying a tobacco product in the prescribed manner.
These are but two of the disproportionate and unjustified rules that hinder economic growth and exacerbate unemployment, which the Section 12 Initiative seeks to highlight.
It’s time for politicians to take violent crime more seriously by investing significant resources and political will into fixing our broken criminal justice system. At the same time, they should do away with the bad laws that punish ordinary people for deeds that shouldn’t be classified as crimes in the first place.
David Ansara is the Chief Executive Officer of Free Market Foundation.
This article was first published by Business Day on 4 April 2024
