While those arrested after the latest outbreak of what has been described as xenophobic violence — in Kya Sands — are due to appear in court soon, experts fear a repeat of events that took place in 2008, when many victims were persuaded to drop charges for fear of persecution.
Sixteen people, mostly foreign nationals, were attacked in Kya Sands north of Johannesburg on July 18 and 19, resulting in 10 arrests. Those arrested appeared at the Randburg Magistrate’s Court on July 22, facing charges of assault, housebreaking and inciting violence. They are expected to reappear on July 29.
Police spokesperson Govindsamy Mariemuthoo told the Mail & Guardian that one of the 10 cases was withdrawn, “maybe because of lack of evidence”, while the remaining nine suspects will reappear before court this coming Thursday.
According to figures from the Department of Justice and Constitutional Development, more than a thousand suspects were recorded after the 2008 xenophobic violence, which led to 597 cases placed before the courts, 109 charges and a conviction rate of 16%. The nature of the charges was public violence, housebreaking, robbery and (attempted) murder, among others.
Sixty-two people lost their lives and more than 100 000 people were displaced in May 2008.
There have been sustained rumours that a new round of attacks would begin after the Soccer World Cup. The immediate deployment of dozens of police officers, in addition to the military, in Kya Sands at the beginning of last week suggests that the government has implemented an early warning system since the 2008 attacks, when South Africa’s security forces were not able to prevent the spread of violence in the initial attacks, in Alexandra, Diepsloot and Tembisa, in the first five days to additional settlements.
Beyond the immediate prevention of further attacks with the help of police and the military, the community and government need to develop new long-term strategies against xenophobic violence, the UN Committee on the Elimination of Racial Discrimination, the South African Human Rights Commission (SAHRC) and a wide range of civil society groups agree.
Perception of impunity
One key area to address hate crimes is the judicial response and monitoring of cases.
Duncan Breen, advocacy officer at the Consortium for Refugees and Migrants in South Africa (CoRMSA), told the M&G that there was a widespread perception of impunity in cases of violence against foreign nationals.
In previous cases, charges against alleged perpetrators had been dropped after pressure from some local residents, Breen said. “Those who laid criminal charges relating to the violence and the damages were later intimidated into dropping charges,” he added.
Tamlyn Monson, researcher at the forced migration studies programme at the University of the Witwatersrand, agreed. She told the M&G that perpetrators of violence who were granted bail “were able to go back into an informal and highly insecure residential environment and intimidate witnesses into withdrawing from the judicial process, thus hindering successful prosecution”.
Proactive witness protection for complainants and witnesses under the Witness Protection Act 1998 is one suggestion by the SAHRC in the Report on the SAHRC Investigation into Issues of Rule of Law, Justice and Impunity arising out of the 2008 Public Violence against Non-Nationals, published in March 2010.
On the immediate community level, one strategy is to ensure that all stakeholders in a particular area are represented in community structures, such as community policing forums, Breen said. “This means including representatives of foreign nationals in such structures too.”
“The Department of Social Development has begun to address social cohesion in integrated development planning,” Monson said. She emphasised that it was important to develop hate-crime legislation that would “enable police and community safety structures to recognise the discrimination that is implicit in this kind of crime”.
The current legal system does not distinguish between “general crime” and “hate crime” motivated by xenophobia, Breen said. But xenophobia-related crime court cases often generate a greater level of tension in a particular community than other crime cases.
“We need heavier sentences and we need to fast-track those cases,” Breen said. “Xenophobic crimes are very painful — to the individual and the community.”