On 29 June this year, amid the generalized panic and concern about rising Covid-19 infection and police brutality both locally and globally, the Johannesburg High Court, in Johannesburg, issued a judgement with potentially major implications for the future of policing in Johannesburg and South Africa more widely.
The judgement related to a challenge lodged by the Socio-Economic Rights Institute of South Africa (SERI) regarding the constitutionality of a series of raids catalyzed by the then Democratic Alliance (DA) mayor of Johannesburg, Herman Mashaba, on so-called “hijacked buildings”—unlawful occupations—in Johannesburg. The raids involved the South African Police Services (SAPS), the Johannesburg Metropolitan Police Department (JMPD), and immigration officials, among other state actors, from June 2017 to May 2018.
This year under a state of disaster, President Cyril Ramaphosa, of the ruling African National Congress (ANC), deployed the South African army, from late March until end September, to support police in enforcing a phased national lockdown aimed at slowing the spread of Covid-19; the lockdown is presently in its final phase. Crime dropped drastically in the first three months of lockdown, though cases of police brutality rose.
The implications of the court judgement, coming at this time, raise questions not only about the raids during Mashaba’s period as mayor from August 2016 to November 2019, but also the long-term effectiveness and constitutionality of militarised urban policing, and how we imagine the post-Covid city.
Militarised policing is characterised not by a single strategy but broadly encompasses a spectrum of heavy-handed, war-like policing tactics oriented around raids; the targeting of buildings, neighborhoods, and borders; profiling groups rather than individuals; and coercive crowd-control.
Mashaba—who on 29 August launched a new party, ActionSA—made these police raids a centerpiece of his strategy, while mayor, of crime prevention in inner-city Johannesburg, pronouncing the inner city a “battlefield.” In particular, he framed, and continues to do so, undocumented migration as central to crime in Johannesburg. Mashaba cast his leadership as a new beginning for a city free of ANC rule for the first time; in fact, his policies represented more of a continuity than a break—a culmination of a decade’s failed attempts to police poverty, and an un-reflexive belief that challenges around unlawful occupation and migration are best resolved with force.
The 29 June judgement by a full bench of the High Court was scathing. It found that “the raids on the applicants’ homes were carried out in a manner that was cruel, humiliating, degrading and invasive”, and that “the police searched the applicants’ homes, without a warrant, regardless of whether they were involved in, or suspected of being involved in, any crimes.” The city’s intention to use the raid to “audit” residents of “hijacked buildings” was found to be unlawful. Neither was it permissible for them, the JMPD or immigration officials to participate in raids under section 13 (7) of the South African Police Services Act, which only authorise SAPS to do so.
The judgement found that there was no strong evidence either to justify the raids on grounds of a “breakdown of public order”, required by section 13 (7), or to demonstrate that they were effective. Out-of-date, template-based and erroneous statistics were repeatedly used. The judgement found that “save for the arrest of a handful of undocumented migrants, police found no evidence of illegality at the applicants’ homes. The intelligence on which the raids were based was obviously flawed. SAPS and JMPD officers arbitrarily detained those of the applicants who ‘looked too dark’ to be South African.”
The Court also found article 13(7)(c), which allows for the warrantless invasion of homes, vehicles and neighborhoods, unconstitutional. The declaration of unconstitutionality was suspended for two years for parliament to address the invalidity. SERI is appealing to the Constitutional Court to make the whole of 13(7)—applied to cordon off of entire areas— unconstitutional. In addition, they are seeking damages for the nearly 3,000 residents of the eleven targeted buildings, and for there to be an interdict on future raids in the buildings. The Constitutional Court also needs to confirm the High Court’s order.
The judgement may have major implications for policing in South Africa. Throughout the Covid-19 crisis the police have been led by a Minister of Police, Bheki Cele, who in his previous role as Police Commissioner promoted police militarisation and shoot-to-kill policies. He has boasted of major drops in crime during the lockdown period. Yet militarised approaches towards policing urban spaces have, over the past decade, both locally and globally, been brutal, ineffective, and anti-poor. All the same, they have been supported across the political spectrum both in South Africa and internationally.
How is it that militarised strategies of policing, aimed at securing public order, can be effective, if brutal, under a state of disaster, and yet, in the long run, ineffective and socially corrosive?
Raids, whether by public police or private security, have been a primary strategy for dealing with urban informality and housing in the post-apartheid city. While a series of Constitutional Court cases from the so-called Grootboom judgement in 2000 to Blue Moonlight in 2011 have made evictions that lead to homelessness unlawful—forcing the city of Johannesburg to commit to expanding low-cost housing and emergency accommodation—militarised strategies and evictions have continued. The ANC responded with hostility to the Blue Moonlight judgement, requiring Johannesburg municipality to provide temporary emergency accommodation to a community to be evicted by a private developer. Housing minister at the time Tokyo Sexwale responded by saying that “illegality or unlawfulness cannot be made legal” and that the case was encouraging “hijacking.” This would become a common refrain.
Mpho Parks Tau, elected the ANC mayor in 2011, presided over Operation Clean Sweep in October 2013, which sought to clear out informal traders from the streets of Johannesburg. The operation worsened the conditions of inner-city residents by taking away a vital source of employment. The Constitutional Court, in December 2013, ordered the city to allow the traders to return to their spaces. In April 2015, after xenophobic violence broke out nationally and spread through the city, Tau effectively mobilised police to quell the violence and responded with a very public anti-xenophobia campaign, supported by public protests. Yet, soon after, in the same month, Jacob Zuma, president at the time, launched Operation Fiela, or “Sweep out the Dirt”, in which the military were deployed on the streets, and police and the army raided hostels, unlawful occupations, and an inner-city refuge for migrants; undocumented migrants were rounded up for deportation.
Where Fiela represented an intensification of raids, these have been a recurrent strategy. From my own research on unlawful occupations, since 2011, I have found that the police raids radically corrode trust between occupiers—mostly households that can’t afford decent accommodation—and police, and make the reporting of violent crimes (including rape and murder), and assistance with investigations, less likely.
Mashaba, in fact, knows the experience of poverty and the ruthlessness of raids first-hand. As an adolescent, as he recalls in his autobiography Black Like You (a play on a hair products company that made him rich), he worked as a dagga (cannabis) dealer to support his family, and his family were repeatedly raided by the zealous apartheid-era police:
It was humiliating to be at the mercy of the police, and yet we had to tolerate these invasions in silence. They carried out their raids under the pretext that they were checking to see who was sleeping in the house—looking in particular for men who should not have been there, men who were in transgression of the pass laws. The rough police officers commandeered the living room or the kitchen, their blue bulk dominating the room, their gruff voices barking out orders for the occupants of the house to present themselves and their passbooks. We despised those intrusions, but we grew used to the invasions.
Yet, decades later, it was Mashaba himself promoting and leading the raids—waking sleeping families, invading their privacy, and looking not for passbooks, but for passports, IDs, and asylum documents. In addition, Mashaba adopted a “war on drugs” rhetoric (though, in a typically contradictory gesture, also expanded rehabilitation centers in the city).
Mashaba, whose wealth was significantly grown, prior to his becoming mayor, through expanding the hair products of his company Black Like Me into Africa, also adopted a strongly nationalist rhetoric. Again, there was nothing particularly exceptional about this—nationalism and securitization are standard fare for the ANC government, who have constantly promoted anti-immigrant rhetoric while feeding into violent, privatised, and allegedly corrupt immigration policies.
For over two decades, until scandal broke in 2018, the Department of Home Affairs supported the renewal of the security company Bosasa’s contract for the Lindela Repatriation Centre used for deportees, allegedly corruptly after the contract was reviewed in 2007 (the allegations are still being probed by the Judicial Commission of Inquiry into Allegations of State Capture). The DA, for their part, were happy to try and capitalise politically on the ANC’s corruption scandals but for years have been promoting increased deportations to Lindela even while civil society and academics had been pointing out its abuses and maltreatment of inmates, to little effect.
Nor are South Africa’s capitalist classes immune: Johannesburg generates significant wealth as a gateway for foreign investment into African markets—the latent philosophy being free movement of capital, while policing the movement of the poor. Racial inequality of course underpins this—it is overwhelmingly the Black poor, both South African and foreign nationals, who bear the brunt of violent and displacing policing while the wealthy are protected by private security.
Mashaba, then, represented continuity with ANC strategies. He did adopt policies for the expansion of low-cost housing, but these were in fact initiated under Tau—although unlike Tau, and contradicting his own advisors and the housing department, he insisted that no foreign nationals would have access to state-subsidised accommodation. Enabled also by a tacit coalition with the supposedly radical Economic Freedom Fighters (who were kingmakers as no party received an outright majority), Mashaba’s time in power made explicit that an ideology of militarised and nationalistic policing, targeted to address social and economic stress, migration and housing shortages, underpins South African politics across the political spectrum.
As the High Court judgement pointed out, such policies were based on no evidence that they were effective in reducing violent crime. The recent release of national police statistics affirms and fills out this picture.
On 31 July of this year, the SAPS released its reported annual crime statistics. The statistics—measured in the financial year prior to reporting, from 1 April to the following 31 March — indicated a national increase in contact crimes. Contact crimes, indicating a direct encounter between perpetrator and victim, are the best general measure of personal safety and include murder, attempted murder, sexual offences, assault with the intent to inflict grievous bodily harm (GBH), robbery and carjacking, among others.
The data, collated by the Institute for Security Studies’ (ISS) Crime Hub, however, allow us to view crime statistics trends over a longer perspective.
The attribution of causality in crime rates is notoriously hard to pin down given that many social, economic, and political factors play a role in addition to policing, and statistics, even when collected more reliably than is the case with the SAPS, only ever roughly approximate life on the ground. However, there is no evidence that intensified raids have had any effect in decreasing violent crime, nor that stronger protections against eviction have worsened crime, in Johannesburg.
From 2013 onwards total contact crimes, both nationally and in Johannesburg began to rise, reversing a downward trend, and this rise continued during Mashaba’s tenure. The expansion of raids in Clean Sweep and Fiela, and later Mashaba’s raids, hence correspond with an increasing rise in violent crime.
If one compares the reports immediately prior to and post Mashaba’s leadership in the city of Johannesburg, there was an increase of reported contact crimes (covering the previous financial year) from 71,484 reported in 2016 to 74,692 in 2020 (an increase of around 4.5%)—between these years contact crimes in Johannesburg slowly rose, while there was a fractional reduction in contact crimes nationally. In other words, in the period encompassing the intensification of the raids, and over the duration of Mashaba’s governance, Johannesburg did noticeably worse off than national figures in terms of changes in violent contact crimes.
Michael Beaumont, who was Mashaba’s former chief of staff while mayor and now the Interim National Chairperson of ActionSA, writes in his book The Accidental Mayor, that Mashaba pushed through “nearly R200 million in the 2017 adjustment budget” to increase the Johannesburg Metropolitan Police Department by 1,500 posts, to be trained over 18 months. In addition, in 2018, in order to make the JMPD, a “serious crime-fighting force”, Mashaba launched Operation Buya Mthetho or “bring the law.” Beaumont claims that “more arrests [took] place in a single year than in the prior five years put together;” he doesn’t state the year.
But there is an obvious sleight of hand here: more arrests neither automatically equate to more prosecutions, nor to decreased levels of violent crime—there are no indications that the city’s residents were made safer as the national statistics show. Increased arrests, may, however, target undocumented migrants and low-income households and place a heavier burden on correctional services and state resources.
The most radical changes in crime statistics have occurred, however, across the country during the Covid-19 lockdown, including an alcohol ban. Quarterly statistics covering April to June 2020, showed that the lockdown had the effect of reducing violent contact crime significantly; for instance, in comparison to last year, murder fell by 35.8% and assault GBH by 41%. Even reported gender-based violence has dropped, although this may be a result of lower levels of reporting.
Researchers from the Institute of Security Studies (ISS) have argued that the lifting of the lockdown is a “double-edged sword” with regards to crime—on the one hand, it may lead to increased crimes, on the other, the exacerbation of inequality during lockdown is also a causal factor relating to crime. They call for more “evidence-based” policing. Andrew Faull of the ISS has pointed to international evidence that shows that more police do not necessarily equate to less crime, but that there are evidence-based methods that do: hotspot policing and improving respect between police and communities.
However, these two can work against each other. Hotspot policing—policing which targets a particular area—can include large-scale police raids on targeted neighborhoods which can significantly corrode trust between police and targeted communities, as they have in Johannesburg. Furthermore, raids, as international comparisons show, have limited impact as a long term strategy of deterring crime, but are effective, primarily symbolically, as political theater.
Faull has also argued, based on a study of the lockdown, that improved regulation of firearms and alcohol may be valuable in the post-lockdown period—while the former is important, the latter, rather than dealing with the structural causes of addiction, is less convincing.
The solutions to violent crime may lie outside policing altogether, and rather in improving social and economic equality. Which brings us to the significance of the Defund the Police movement for the conversation on policing in South Africa.
With the mass mobilization of the Black Lives Matter movement in the US and globally, the Defund the Police philosophy has become a central aspect of resistance to police violence. These debates have acute local relevance as, during the lockdown in South Africa, police brutality, though a long-term issue, increased, with several publicised cases, recently including the killing of a disabled teenage boy Nathaniel Julius.
A basic message of the Defund the Police movement (distinct from an absolute abolitionist approach) is that many police forces are a source of persecution of poor Black, and other economically marginalised, communities rather than protection. Public resources could be reallocated from oppressive and ineffective police units and operations into other social services such as housing, healthcare, education, addiction rehabilitation, and employment creation— interventions that may also improve public safety over the long term by addressing the deeper structural causes of crime.
As the academic, journalist, and activist Keeanga-Yamahtta Taylor has shown in relation to the US, immiserating housing policies have gone hand in hand with heavy-handed policing tactics. Those most excluded from housing markets—those living unlawfully or in dismal conditions, evicted, and red-lined—are frequently those groups most subject to police persecution and offered the least protection. In South Africa, too, we see how those excluded from formal housing and rental markets are often those targeted in indiscriminate police action.
The issue, however, speaks to the very foundation of contemporary policing. Alex S. Vitale, in his book The End of Policing, documents how modern police forces were created to maintain social order and control rather than improve public safety. With their origins in colonial police forces, modern police were geared towards protecting private property, repressing protest, and controlling dissenting colonised and working-class groups. In South Africa, this logic is patently clear: the police and military were oriented towards reinforcing a racially exclusionary and totalitarian social order with little concern for public safety (beyond that of whites in control).
Upon these colonial foundations have been introduced a host of policies (many of them introduced in post-apartheid South Africa in some form) aimed at policing social order: so-called “broken windows” theory (the idea that policing minor infractions reduces violent crime), the “war on drugs”, the policing of sex-work, and the securitization of borders. These are all socially and politically popular, but, as the growing evidence that Vitale documents shows, either ineffective or harmful. What underpins the assumptions of the militarised policing model is that crime is a result of the breakdown of public order rather than something more pervasive: inequality. Defund the police speaks directly to these issues.
Of course, in South Africa we cannot argue that the police should be defunded if that leaves the wealthy to increasingly rely on private security and the poor with little protection, as William Shoki has cautioned against. But present policing policies frequently do not protect the poor, but widely persecute them; police are not effectively addressing high levels of sexual and gender-based violence, and are sometimes perpetrators. Violent private security forces like the Red Ants operate with impunity, in spite of numerous allegations of brutality, and have continued even during the Covid-19 lockdown when this has been unlawful in terms of the state of disaster regulations. These are not merely issues of bad individuals, but the inheritance of institutional violence.
In spite of all the damage done, Johannesburg’s past decade has not been wasted. A series of Constitutional Court cases have made significant ground in protecting the poor against homelessness and eviction, even while conditions in temporary accommodation sites are often dismal, and, without adequate low-cost accommodation, they become de facto long-term or permanent homes. Subsequent administrations have recognised—or been forced to recognise—that the urban housing problem needs to be addressed and low-cost accommodation expanded. Yet, they have still to recognise unlawful occupiers as legitimate residents of the city and provide them with basic services and protections.
Intersectional feminist movements like the #TheTotalShutdown campaign have mobilised against gender-based violence and highlighted the need for the greater protection of women, along with transgender and queer communities. There have been large protests against xenophobia, and the Inner City Federation, founded in 2015, has emerged as a broad-based movement representing low-income inner-city residents and unlawful occupiers.
But there has yet to be a major ideological shift regarding policing, even with the change of parties. Mashaba resigned from the DA at the end of 2019 on the basis that the party was too regressive in terms of race reform even for his pro-business stance; yet his new party ActionSA just shows a doubling down on the same policies. It is too early to judge the new ANC Mayor Geoff Makhubo, now gifted the post by the EFF, and the signs so far have been mixed.
Even while lockdown strategies appear to have been provisionally successful in reducing Covid-related mortalities (though the World Health Organization has recently questioned their long-term justification), the municipality has continued to support evictions during the lockdown. The impact of the lockdown has been born disproportionately by the poor. Migrants have been widely excluded from state social and food support. However, the civil society response to Covid-19 in particular through networks like the Covid-19 People’s Coalition has been inclusive. State and civil society relations have also deepened in addressing issues of access to basic services like water. These offer the ground from which a post-Covid city could be shaped.
I write this from Brazil, where I have been based during the Covid-19 period. The response to Covid-19 under President Jair Bolsonaro, in comparison to South Africa, has been inept, chaotic and ineffective; as of 13 October, Brazil had more than double the deaths as a proportion of the population, although underreporting is likely high in both countries. This suggests that a proactive and clear state response to Covid-19 in South Africa was, in part, justified. However, the police and military brutality and evictions were not. Brazil also offers a longer-term lens into the dangers of militarised police.
The Military Police in Brazil—organised into battalions along military lines—are frequently excessively violent, and corrupt. In Rio de Janeiro state in the first four months of this year police killed over 600 people. As a result of continued police violence during the pandemic, the Supreme Federal Court suspended police operations in Rio favelas, except in exceptional circumstances, at the beginning of June this year. Over June, deaths as a result of police operations in the Rio de Janeiro municipal region fell by over 70%, compared with June averages kept since 2007; other lethal crimes fell 48%. The expansion of a military model of policing may not only fail to address criminal violence and insecurity, it risks actively worsening it and increasing social repression and violence.
Johannesburg, and South Africa more widely, should not go further down the path of militarization. Unless there is an injection of new ways of thinking, both in the ideology of policing, and regarding the just redistribution and allocation of public resources, the crises of the city will only deepen.
This article was first published on Africa is a Country