Article

Punishment & Society

2016, Vol. 18(3) 325–345
Punishment, violence, ! The Author(s) 2016
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DOI: 10.1177/1462474516645685

democracy in South pun.sagepub.com

Africa—The politics of
populist punitiveness
Gail Jennifer Super
University of Cape Town, South Africa

Abstract
This article discusses the apparent contradictions, and consequences, of the state’s
embracing of democratic ‘community’ based criminal justice initiatives, in tandem
with long-term imprisonment, in the context of vigilantism in Khayelitsha, a black town-
ship on the outskirts of Cape Town. I argue that vigilante practices are part of a con-
tinuum of community-based crime prevention and punishment practices, where the
legal and illegal are blurred, and with which the state is complicit. Looking back, from
the vantage point of 2014 to the time when South Africa emerged from apartheid rule
and held its first democratic elections, in April 1994, it is clear that mass democracy has
had an uneasy relationship with the liberal values enshrined in the Constitution. I argue
that punitive punishment is one of the consequences of the state’s turn toward
democratic localism and its embracing of a discourse that encourages communities
to take responsibility for crime prevention. The danger of rallying ‘communities’
around combating crime is that it has the potential to unleash violent technologies in
the quest for ‘ethics’ and ‘morality.’ As George Herbert Mead pointed out many years
ago, when community members unite against an outsider, they are bonded for an
intense moment in a way that masks the very real problems that tear the community
apart. The ironic twist is that ‘mob justice’ in Khayelitsha is also a mass technology to
protect private property in the context of the endemic inequality that characterizes
South Africa

Keywords
community, populist punitiveness, vigilantism

Corresponding author:
Gail Jennifer Super, 2A Chelsea Avenue, Vredhoek, 8001, Cape Town, South Africa.
Email: gjs220@nyu.edu

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326 Punishment & Society 18(3)

Waving placards that read ‘Sonele zizikoli, sanele yicrime (we have had enough of
crime and thugs),’ more than 60 angry residents protested outside the Khayelitsha
Police Station on Tuesday . . . Residents’ leader Unathi Mabengwana said: ‘Given the
high crime rate in our area, we are of the view that whatever cops do to fight crime
here is not enough. ‘We demand that cops should be more harsh when dealing with
criminals.’ (Daily Sun, 2 May 2012)

Introduction
With the advent of formal democracy in South Africa in April 1994, one might
have been justified in expecting that the criminal justice system would become less
punitive and that this would entail less reliance on imprisonment as a punishment
par excellence. Thus, for example, in 1992, the African National Congress (ANC,
1992: 7) stated that ‘our crime problems are NOT being solved by large-scale
imprisonment’ and that ‘however much one condemns those deeds’ the state
response should show compassion for the perpetrator (emphasis in the original).
However, looking back from the vantage point of April 2014, with the country
celebrating 20 years of democracy, it is clear that the prison still plays a central
role in penality. Although the numbers in custody have been reduced since an
all time high in 2004, South Africa has the highest incarceration rate in Africa
and, at 292 per 100,000, one of the highest in world (Judicial Inspectorate for
Correctional Services, 2010; ICPS, 2015). Democratization has brought with it a
dramatic increase in long-term prison sentences, ranging from seven years to life.
Thus, in 2013, the number of people serving life imprisonment stood at 11 000, as
opposed to 400 in 1994 (Judicial Inspectorate for Correctional Services, 2013).
In 2002, at the precise time at which the South African rate of imprisonment had
almost peaked, the Department of Correctional Services introduced a restorative
justice approach that ‘aimed at facilitating the mediation and healing process
between offenders, victims, family members and the community’ (Department of
Correctional Services, 2001: foreword). This article discusses the apparent contra-
dictions, and consequences, of the state’s embracing of democratic ‘community’
based criminal justice initiatives, in tandem with long-term imprisonment, in the
context of vigilantism in Khayelitsha, a black township on the outskirts of Cape
Town.
One explanation for the discursive embracing of the benign sounding ‘commu-
nity,’ together with the shift to long-term imprisonment, is that in fact these are not
simultaneous, but sequential, penal developments. Thus, although the South
African state deployed the discourse of community-based criminal justice in the
early days of the rainbow nation democracy, it soon thereafter shifted into a more
punitive, and less democratic gear, characterized by harsh policing and high rates
of imprisonment—this is not only reminiscent of apartheid style militarized
policing but also represents a shift away from the earlier phase of people oriented
(and more democratic) community policing (Rauch, 2007; Van Zyl Smit and

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Van Der Spuy, 2004). Hornberger (2013: 2) provocatively counters this analysis,
arguing that the ‘current [punitive] changes’ should not be interpreted as a ‘distan-
cing’ between the police and ‘the people’ but, instead, represent an increase in
‘unmediated proximity’ between them. The fact that the shift to harsher policing
has taken place in conjunction with a proliferation of community policing initia-
tives makes it ‘popular rather than elite or autocratic.’ This perspective helps to
make sense of what might otherwise appear to be ‘contradictory, incoherent
trends.’
Hornberger (2013: 12) argues that community (or democratic policing) is ‘a
policing of proximity’ which seeks legitimacy from the community and, in the
process, is penetrated ‘by forms of local justice,’ including the call for ‘illegal vio-
lence.’ These, she argues, are removed from ‘the civility of the law’ (Hornberger,
2013). Hornberger thus appears to counterpose law—which is based on ‘civil-
ity’—with violence, which is based on brute force. Yet, like power more generally,
violence works on many levels, assumes different forms and deploys various tech-
nologies, including legal ones (Foucault, 1995; Allen, 1999; Blomley, 2003). In this
article, I argue that the ‘illegal violence’ (Hornberger, 2013) associated with vigi-
lantism in Khayelitsha is part of a continuum of community-based crime preven-
tion and punishment practices, where the legal and illegal are blurred, and where
the state is complicit precisely because it both constitutes, and is constituted by, a
vengeful ‘community.’
Because of space constraints, I will not summarize the extensive literature on
vigilantism, suffice to say that the term itself is not self-explanatory, that it lacks
‘clear-cut conceptual and empirical boundaries’ (Buur and Jensen, 2004: 148), is
politically contested and, its usage often reflects the political leanings of those who
deploy it. Thus, for example, officials of the National Union of South African Mine
workers have referred to rival union members as being ‘vigilantes’ (Tabane, 2013)
and, the South African Police have, at various points in time, denied its existence,
ascribing it to ‘pure criminality.’ Huggins (1991: 8) refers to a ‘vigilantism con-
tinuum’ ranging from an informal to a formal pole and Buur and Jensen (2004:
148) call for an approach that studies vigilante practices as opposed to vigilantism.
Johnson (1996: 226) refers to it as form of ‘autonomous citizenship’ that the state
sometimes recognizes and authorizes. He argues (op cit.: 232) that ‘illegal and
extra-legal action are not. . .preconditions of vigilantism.’ I use the term to describe
the use of illegal or unlawful violence in pursuit of community-based crime control
(and punishment) objectives, describing situations where unlawful violence emerges
out of lawful initiatives, such as neighbourhood watch schemes and street
committees.
Although recent scholarship in the field of punishment and society has called for
an analysis that recognizes the hybrid forms of punishment practices and how the
boundaries of punishment are blurring and shifting (Beckett and Herbert, 2010;
Garland, 2013a; Gottschalk, 2013; Hannah-Moffatt, 2005; Maurutto and Hannah-
Moffat, 2006; Robinson, 2008; Simon and Sparks, 2013) this scholarship has not
analyzed ‘non-state’ or illegal forms of punishment within this analytical

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328 Punishment & Society 18(3)

framework, in other words, the literature is still state and law centric. This article
attempts to address this gap by analyzing vigilantism as part of a continuum of
hybrid penal forms, demonstrating that it is not always obvious where state pun-
ishment begins and ends, nor where the ‘community,’ which blurs with the ‘state,’
begins and ends. In doing so, I emphasize the fulcrum-like role that marginalized
‘communities’ play in linking the conceptually separate technologies of crime pre-
vention and retribution.

Background and methodology

Meaning ‘new home’ Khayelitsha was established in the early 1980s in terms of the
infamous Group Areas Act (Department of Community Safety, 2009). It covers an
area of about 47 km2 and is the fastest growing and third largest township in South
Africa, with a population of approximately 400,000.1 Poverty is widespread
although it is not evenly distributed and some areas, for example Lingelethu
West, contain pockets of ‘modest prosperity’ (Seekings, 2013: 20). Despite this
unevenness, the majority of Khayelitsha’s residents live in shack settlements,
accessing electricity illegally, sharing communal water taps, and relying on inad-
equate sanitation arrangements (e.g. outside portable toilets).
As a ‘frontier society’ (Little and Sheffield, 1983: 796), Khayelitsha poses par-
ticular problems for the administration of criminal justice and state structures
enjoy little legitimacy. Identified by the Western Cape provincial government as
a ‘zone of poverty and unemployment’ (Department of Community Safety, 2009:
20), Khayelitsha has the second highest number of murders in the province, with
168 murders in 2012–2013 (Eyewitness News, 2013) and together with the poor
black townships of Nyanga, Gugulethu, and Harare, it records the highest number
of murders in the Western Cape (Lancaster, 2013). In August 2012, the Premier of
the Western Cape—acting on a complaint received from six human rights focused
Non Governmental Organizations—established a Commission of Inquiry into
Policing in Khayelitsha (hereafter referred to as the Khayelitsha Commission).
The Commission was mandated to investigate ‘Allegations of Police Inefficiency
and of a Breakdown in Relations between the Community and the Police in
Khayelitsha,’ as allegedly indicated by a spate of vigilante attacks that had been
reported in the media (Zille, 2012).
The empirical data on which this article is based were collated during the pre-
liminary stages of a broader research project on crime prevention and punishment
in informal settlements. I started by conducting in-depth interviews with members
of the Social Justice Coalition (SJC), one of the organizations that was instrumen-
tal in the establishment of the Khayelitsha Commission. The SJC is a human rights
oriented activist organization, based in Khayelitsha. During the period of my
research, it spearheaded a ‘Campaign for Safe Communities’ as well as canvassing
intensively for the Khayelitsha Commission. I attended eight of the meetings that it
held in pursuit of these objectives. This enabled me to draw conclusions about the

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unintended consequences of campaigning around crime in a context of great scar-

city and rampant social and economic inequality.
I also conducted 24 selective in-depth semi-structured interviews with residents
in Khayelitsha’s informal settlements.2 These were based on a snowball approach,
with my initial analysis determining where to go, and what to look for in my next
round of interviews. At all times, I sought to understand popular discourse on
vigilantism (and its causes) together with the ways in which crime and punishment
were dealt with outside of the formal criminal justice system. Because interviewees
consistently referred to street committees and their role in resolving (and sometimes
exacerbating) community-based conflict, I interviewed nine street committee mem-
bers.3 I also conducted interviews with members of community patrol groups, such
as the ‘Father’s Committee’—a group consisting of about 200 male members who
patrolled the convoluted alleyways between shacks, a community journalist cover-
ing vigilante incidents, a film director making a documentary on ‘mob justice,’ five
residents who self-identified as ‘vigilantes’ and, four mothers whose children had
been beaten to death as a result of their alleged involvement in theft.
Given the limited number of interviews conducted, I make no claims to sample
representativeness nor to having come close to mapping all the ‘non-state’ crime
prevention initiatives or incidents of vigilante violence in Khayelitsha. However,
combined with my other sources—the notes that I took when I attended three
weeks worth of proceedings in a High Court case where six people were charged
with the kidnapping and murder of four youth who were alleged to have stolen the
plasma television set of one of the accused; observations based on my attendance of
the first ten days of the Khayelitsha Commission’s public hearings and; various
research reports commissioned by the Western Cape’s Department of Community
Safety—I got a strong sense of the overall situation. To be sure, ‘mob justice’ is a
violent spectacle where victims, and the communities with which they are linked,
proclaim the extent of their suffering and seek vengeful redress. But, as I argue,
illegal forms of punitive punishment are also shaped by the state’s turn toward
democratic localism and its embracing of a responsibilizing discourse that encour-
ages communities to participate in crime prevention initiatives. I start by discussing
how victims (and their communities) have, in the past 20 years, discursively at least,
if not always in practice, come to assume a central role in the criminal justice
system.

‘Mass political culture’4 and the community

Rooted as it is in the 1980s notions of people’s power and the leftwing notion of
grassroots democracy, the ‘community’ has great rhetorical purchase in South
Africa today. It encapsulates the communitarian emphasis of the ‘people shall
govern’ clause of the Freedom Charter,5 echoes the global embracing of informal-
ism, is presented as an effective means of combating crime, and, of course, dovetails
with the neoliberal shift toward greater responsibilization—across all fields of

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330 Punishment & Society 18(3)

government—by shunting responsibility from the State to the ‘people’ (also known
as ‘the community’).
This form of governance, what Darracq (2008: 595) refers to as operating in
terms of a ‘liberation paradigm,’ valorizes local level initiatives by constantly seek-
ing to mobilize communities on the ground. Thus, in 1992, the ANC (1992: 8–9)
stated that it was ‘the community who are largely responsible for prosecutions
[and] . . . not the police alone who combat crime.’ The objectives of Community
Police Forums (CPFs), established in terms of the 1995 Police Services Act,6 are to
contribute toward ‘enhancing the ability of the police to combat and prevent crime,
disorder and fear, in partnership with the community’ and, Parole Boards are
meant to give the ‘community’ a special say in release decisions (Department of
Safety and Security, 1997: 8; Department of Correctional Services, 2014).
Not only has democratization ushered in a growing discursive emphasis on
giving crime victims a role to play in sentencing, bail, and parole decisions, but
the South African Police Service (SAPS) measures the success of its ‘social crime
prevention strategy’ in terms of the number of crime awareness programs, neigh-
bourhood watch schemes, business forums, and street committees that are estab-
lished to deal with crime (Khayelitsha Commission, 2014: ‘Western Cape Annual
Performance Plan 2012/2013,’ Annexure PC1). In some instances, the notion of
partnership policing even includes ‘mobilizing the community to oppose bail’ via
collaboration with the CPFs (Reitz, 2010: 33). Indeed, the community is so fun-
damental to policing in democratic South Africa that police will, in future, be
subjected to a ‘stringent new recruitment process’ that includes ‘being paraded in
front of community members,’ via a ‘community parade’ (Jones, 2014: 7).
A 1997 amendment to the Criminal Procedure Act7 provides for crime victims
and/or the community in which the crime occurred to play a role in bail decisions.
In particular, a court may refuse bail where the release ‘will disturb the public order
or undermine the public sense of peace or security.’8 The criteria that it may take
into account are all concerned with how the community will react to the release.
Thus, bail may be refused where

. the nature of the offence is likely to induce a sense of shock or outrage in the
community where the offence was committed9
. the shock or outrage of the community might lead to public disorder
. the release might jeopardize the accused’s safety
. the release will undermine or jeopardize the sense of peace and security among
members of the public
. the release may undermine or jeopardize the public confidence in the criminal
justice system.10

In this way, then the door is opened for an ambiguous and vengeful ‘community’
to play a central role in the supposedly neutral criminal justice system. This brings
to mind Pratt’s (2013: 97) ‘decivilizing process,’ in terms of which the ‘liberal
notions of unemotive sentencing and bail decisions’—ideas that are enshrined in

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Super 331

the South African Constitution—are undermined. In South Africa, as I discuss in

the next section, there is an elective affinity between the violent modes of popular
sovereignty, that surfaced during the liberation struggle, and the punitive treatment
of those deemed to be criminal.

Crime and politics

Marginalized communities in South Africa have a history of self-policing and vio-
lence has always played a prominent role in local politics (De Klerk, 1999; Haysom,
1986; Kynoch, 2008). Both the Nationalist Party government and the ANC qua
liberation movement used the death penalty against their enemies, and the radical
traditions of people’s power and ungovernability sometimes resulted in violent
punishment (Kynoch, 2011; Seekings, 1989; Wilson, 2002). Indeed, the relationship
between violence and justice has deep roots in South Africa and, whether legal or
illegal, violence has had an ubiquitous and quotidian presence in South African
history (Allison, 1990; Harris, 2001; Kynoch, 2008; Pavlich, 1992; Seekings, 1989;
Wilson, 2002).
During the 1980s struggle, activists presented ‘people’s power’ as the ‘collective
strength of the community’ (Sisulu, 1986). It was, according to ANC stalwart,
Zwelakhe Sisulu, a particularly good form of crime control since it was
‘disciplined, democratic and an expression of the will of the people’ (Sisulu,
1986: 17–18). The key distinction between ‘people’s power’ and ‘coercion’ was
whether a ‘democratic mandate from the community’ existed or not. Thus,

When bands of youth set up so called ‘kangaroo courts’ and gave out punishments,
under the control of no-one with no democratic mandate from the community, this is
not people’s power . . . [but] a ‘crime.’ (Sisulu, 1986: 17, emphasis in original)

On the other hand, when

disciplined organized youth, together with other older people participate in the exer-
cise of people’s justice and the setting up of people’s courts; when these structures are
acting on a mandate from the community and are under the democratic control of the
community, this is an example of people’s power. (Sisulu, 1986: 17)

As is the case today, the community was both a site of contestation and a powerful
ideological legitimating device. Armed factions, on both the left and the right,
legitimated their violent actions via rhetorical appeals to the ‘community’
(Wilson, 2002: 181; Burman and Schärf, 1990). Just as the apartheid state depicted
township activists as violent criminals and terrorists, stripping their acts of a pol-
itical dimension, so too did the ‘comrades,’ sometimes commit violent acts in the
name of politics and accuse the South African government officials, and their
lackeys, of being the true criminals. What might be regarded as gratuitous acts
of violence, such as ‘necklacing’—the setting alight of a tyre doused with petrol,

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332 Punishment & Society 18(3)

which had been placed around the neck of the victim—assumed some kind of
political salience, due to the fact that the targets of these acts were accused of
being spies or apartheid collaborators. At the same time, although the line between
politically motivated crime (which was justifiable) and non-politically motivated
crime (which was unjustifiable) was a blurred one, as is the case today, crime was
regarded as a threat to ‘community solidarity.’ Criminals were considered
counter-revolutionary (Marks and McKenzie, 2001) and were treated harshly
(Super, 2013).
In post-apartheid South Africa, crime and punishment have assumed an ideo-
logical importance that is markedly different from the situation during apartheid.
Although the ANC government still claims legitimacy on the basis of its liberation
struggle credentials, its hegemony has come under increasing strain in the past few
years, as evidenced by escalating violent strike action and service delivery protests,
combined with internal divisions and fissures among the party’s leadership. With
the transition from a white minority government to a black majority government in
1994, the ANC had to transition from a liberation organization, calling for ungov-
ernability in the black townships, to a governing party. As such, it had to govern
and demonstrate control over a crime situation about which citizens were becoming
increasingly vocal, and which it had hitherto ignored. Tensions arose between its
previous pronouncements on how it would deal with crime, the punitive practices
that it now adopted and its attempts to legitimate the police via community or
‘democratic’ policing.
As crime became increasingly problematized and politicized, subjected to better
measurement, parliamentary debates and a bipartisan consensus on the need to
treat criminals harshly, so too did the new ANC government seek to simultan-
eously legitimate the previously vilified criminal justice institutions (particularly the
police and prisons) and prove that it was not soft on crime. It did so via an eclectic
range of ‘strategies,’ three of which concern us here: that of community policing—-
which included a call for township communities to revive the street committees of
the 1980s; uncoupling criminals from a political and social context by presenting
them as a threat to the country’s young democracy and; reinventing the prison, as
being restorative rather than punitive. In this regard, it is significant that when the
Constitutional Court rendered the death penalty unconstitutional in 1995,11 it
embraced the notion of ‘a reformative prison,’ thus helping to cement the shift
to long-term imprisonment. At the opening of Parliament in 1995, President
Mandela blamed crime and violence for ‘eroding the foundation of our democ-
racy,’ thus necessitating a ‘harsher approach’ (Department of Safety and Security,
1999: 9). In 1999, the Deputy Minister of Justice boasted that mandatory minimum
sentences and restrictive bail laws were ‘progressive’ (Hansard, 1999: col. 2756)
and, in 2001, the Minister of Safety and Security stated that prisons were over-
crowded because the police were doing their job and that ‘all what we need . . . is to
fully rally behind the police and to declare that the fight against crime is our fight’
(Hansard, 2001: col. 2470). Political leaders have also called on police to ‘kill the
bastards’ (Hosken, 2008) to ‘teach them a lesson’ (Sapa, 2008) by means of the use

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of lethal force and to show ‘no mercy’ (Burger, 2009, cited in Bruce, 2010: 9). This
‘hyper-politicization of penal policy’ (Gottschalk, 2013: 217) frames the field of
punishment (and other ‘self-help’ initiatives) in Khayelitsha and other marginalized
South African townships.

Blurred boundaries
It is precisely because the term ‘community’ is polyvalent and flexible enough to
bear different meanings, depending on the context, that it functions in multiple
ways, appeals to diverse parts of the political spectrum and results in the exclusion
of those who do not ‘belong’ (Lacey and Zedner, 1995; Super, 2013). Members of
neighbourhood watch schemes and street committees may be, or may have been,
the same people who become part of a ‘mob’—the point is that neither the ‘mob’
nor the ‘community’ are fixed concepts and there is slippage between the way that
these terms are deployed.
During my research, I was consistently told that street committee members were
unable to disagree with ‘community decisions’ because the community was more
powerful than the committee.12 One interviewee stated that ‘whereas the street
committee has 15 members the community members are 600 and that’s why we
say ‘‘community’’ not ‘‘committee.’’’13 The chairperson of a street committee stated
that it was not ‘us’ (the street committee) but, ‘the mob which kills [and
that] . . . although we try to say you can beat but not to kill him, you can’t stop
the community . . .’.14
In one instance—where a ‘skollie’15 had murdered someone and stolen a lap-
top—the male members of the area committee solicited the help of male residents in
the informal settlement and conducted a search. They found the stolen goods and
burnt the shack of the alleged perpetrator. According to my source, who was a
South African National Civic Association (SANCO) office holder, ‘they never said
anything at the SANCO meeting because SANCO wouldn’t agree—that’s why they
don’t tell you.’16 She differentiated her official capacity from that of being a com-
munity member:

when crime happens it affects me as a member of the community. When I see there’s
something happening I have to go, not as a representative of SANCO, but as
a community member. Then we have the meeting and I report what I saw [as a
member of the community]. In most cases where a thief is caught– there is no time
to call the area committee—they call the whole community to come to the open space
and the community decides. If it comes from the area committee then the police blame
the committee. (Interview conducted on 16 August 2014)

Thus, when my interviewee shifts from being a SANCO office bearer to a member
of the ‘community,’ she can participate in violence, or at least watch it taking place.
It is also not always clear what the state looks like, nor who its agents are. For
example, when the Department of Community Safety offers free training to

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334 Punishment & Society 18(3)

neighbourhood watch members as a condition for donations of equipment, it

seems (at least to outsiders) that they have some official status. When volunteers
wear coloured bibs, their work is somehow formalized: ‘they look like the
state . . . the community often doesn’t know the difference—for them it’s all law
enforcement.’17
A 60-year-old woman, who was very involved in community activities and a
longstanding ANC member, told me, as I sat on the couch in her spotlessly clean
shack, that she was explicitly against the violence of the local community patrol
group. Yet, she admitted that ‘even us [the Sector Four neighbourhood watch], if
you are very naughty and you refuse to spread your legs and hold your arms above
your head we will sjambok you.’18 And, indeed, neighbourhood watch members
have been known to mete out punishment in the name of crime prevention. In one
instance, a neighbourhood watch scheme reported that its members had made a
person who ‘sprayed’ them with water do 36 push-ups for ‘punishment’
(Khayelitsha Commission, 2014: 2736).
Tshehla (2002: 52) describes how, when the secretary of the Khayelitsha
Community Police Forum (KCPF) was robbed, she

took it upon herself to mobilize other people and looked around for the culprits until
they found two of them in possession of stolen property. When these suspects were
granted bail she took it upon herself again, with the assistance of the KCPF chairman,
to confront both the police and a senior prosecutor. The result was that the investi-
gating officer was changed and a warrant of arrest was issued for the suspects to be
rearrested. Throughout she kept the investigating officer under tremendous pressure
to ensure arrest.

Although Tshehla’s research (2002: 52) revealed that the KCPF ran neighbourhood
watch schemes as a ‘crime prevention strategy,’ there is evidence that in those
instances where the Community Police Forum is not ‘well-organized,’ then ‘the
community’ runs them.19 One of my interviewees was a member of three different
committees, all with varying relationships with the state: the local neighbourhood
watch scheme, a community patrol group and the KCPF. He had also been a
participant in the unlawful demolition of three shacks in an informal settlement,
after a decision to this effect was taken at a ‘general council’ gathering of the street
committees in his area.
Banishing is a common remedy deployed by the ‘moral community’ (Buur and
Jensen, 2004: 144) against ‘dangerous’ individuals. It is effected either by informal
curfews, in terms of which a group of people (often armed with sjamboks and
sometimes accompanied by the police) patrol an area at night, confronting those
who look suspicious and instructing them to leave; or by talking to the family of a
suspected criminal and instructing them to ensure that the person leaves the neigh-
bourhood or by demolishing the person’s dwelling (either by burning or bashing it
down with hammers); or finally, by killing the person. Banishment, in the case of
children, under the age of 18, who still reside with their parents, may be directly or

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Super 335

indirectly imposed. One interviewee told me that when a community member was
robbed by a youth, the latter was not ‘chased away but his parents sent him back to
the Eastern Cape’ because they knew the consequences: ‘we can beat the kid or
chase both the kid and the parents away.’20 In some instances, a decision taken at
street committee level to banish an ‘offender’ by demolishing his or her dwelling is
taken too far when the enforcers not only destroy the shack but also assault (or kill)
the resident, sometimes destroying other homes in the purging process.21 Unless the
victim is killed expulsion is tacitly tolerated, and sometimes condoned, by the state.
According to a high ranking police witness at the Khayelitsha Commission,
whether it was a case of housebreaking or ‘child molestation,’ none of these
‘formal meetings’ were accompanied by violence: ‘these people [i.e. the perpetra-
tors] were just motivated to leave, which they then did’ (Khayelitsha Commission,
2014: 4635).22

Violence and the retrieval of goods

Whereas in the mid-1980s, most necklacing episodes were political in
nature—targeted at police collaborators—in post apartheid South Africa, they
are targeted at alleged criminals (Harris, 2001). According to a 2012 police
report between April and June 2012, there were 78 recorded ‘vigilante incidents’23
in Khayelitsha (South African Police Service, unpublished). These all resulted
in violent deaths, by stoning, necklacing, and beating. Most of the victims were
young men, between the ages of 18 and 30: at least half had either been caught
stealing, or robbing, or housebreaking, or were suspected of same. Ten were
reflected as having either been recently released from serving a prison sentence
or from remand detention.
According to research conducted by Seekings (2013: 24), a far smaller propor-
tion of Khayelitsha’s residents said that they would go to the police to solve prob-
lems of house-breaking than was the case in white or coloured neighbourhoods.24
Instead, a significant minority of respondents said that they would solve the prob-
lem locally—through friends, neighbours, or local organizations—rather than rely
on the police. In the trial that I observed the state eyewitnesses testified that had the
accused followed the standard practice of reporting the stolen TV to the street
committee (note, not to the police) the deaths of the suspects could have been
avoided. Similarly, a young woman living in a tin shack told me that when her
blankets and hair-iron were stolen during a break-in she did nothing, because she
did not see the thieves, and that if she had seen them she would have alerted the
‘community’ to assist her in retrieving her goods.25
A former member of the Amadlozi (a vigilante organization in Port Elizabeth),
now living in Khayelitsha, explained that it was:

important to get the goods back before they get taken to the Eastern Cape where they
get sold and you never see them again. We follow the lead and get the suspect—if the
suspect is willing to talk (because all is pointing to him) there is no need for a massage

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336 Punishment & Society 18(3)

and if he doesn’t talk yes he will get a little massage and he talks and we find the goods
and it’s only then we take him to the police.26

His reply to my question of why he would take the person to the police, after
retrieval of the goods, was that prevention was ‘better than cure,’ that ‘the law’
had to ‘take it’s course’ and that ‘the judicial system must do its duty: we already
assisted the Investigating Officer. We made the job easier.’ This is ironic, consider-
ing that in fact the law is patently not taking its course. Instead, what we are seeing
is the balancing of the ‘law’ that Khayelitsha’s residents desire, with the one that
they expect. The former involves the police cracking down on criminals, locking
people up for more than the requisite 48 hour period (which is illegal), making
communities safer and, returning stolen property. The law that they expect is one
which will not assist them because its agents are corrupt, inefficient and ‘on the side
of criminals’.27
Some of the members of the Social Justice Coalition (SJC) also supported
the beating of ‘criminals’ by ‘community members’ as a technique to retrieve
stolen goods, although they claimed not to participate in violent activities.
One person told me that the rate of crime had decreased in his area because the
troublemakers had been ‘taken out.’28 He stated that ‘smacking’ is not a punish-
ment but also said that ‘if we take the law into our own hands we are promoting
apartheid.’29 Another told me that although ‘the community’ is ‘civilized,’ due to a
‘lack of justice people will lose their patience’ and ‘violence is always lurking’30 with
‘decent people . . . driven to acts of desperation.’31 Thus, on the one hand, there is
complicity and, on the other, there is a muted outrage.

The legitimacy conundrum

Dominant public discourse in South Africa is replete with allegations that criminals
are released on bail when they should not be: that prisons are like five star hotels,
that the criminal justice system is too slow, that the police do not do their jobs
properly, that there are too many acquittals, that there are too many early releases,
the list is endless. One only has to peruse the record of the evidence given at the
Khayelitsha Commission to find overwhelming references to police and overall
criminal justice system inefficiency. The point of this article is not to prove or
disprove the validity of these claims but to note their prominent presence and, at
the same time to observe how, in the quest for harsh treatment of criminals, the
negative consequences of imprisonment are almost entirely excised from the
debate. The perception is that criminals avoid white neighbourhoods because of
the presence of private security companies and the police but, according to a
member of the SJC, ‘here in Khayelitsha there’s no policing so the criminals can
do stuff.’32 Another interviewee stated that the difference between Khayelitsha and
Camps Bay33 is that ‘in Khayelitsha you get bail but not in Camps Bay—bail
amounts are still too low in Khayelitsha.’34 This is ironic because in fact many

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Super 337

people who await trial in prisons are too poor to pay bail (Judicial Inspectorate of
Correctional Services, 2011).
De Klerk (1999) argues that the ideology of collectivism encourages vigilant-
ism, because the raised expectations generated by institutions of partnership
policing are inevitably not met. Where the police encourage the public to join
neighbourhood watch schemes, to establish community patrols, to observe and
report crimes, they also create the expectation that they will be available to
assist in instances when crime is detected (De Klerk, 1999: 51). However, given
a scarcity of resources, particularly in the poorer communities, this promise is
never fulfilled. On a more cynical note, one could argue that community solu-
tions to crime and policing are attractive, not because they actually reduce the
incidence of offences but because, like punitive punishments, they reassure
people that something is being done to collectively prevent crime (Lacey and
Zedner, 1995). Garland’s (1996) theory about a Janus faced state that is both
punitive (to mask its ineffectiveness), as well as distant (seeking to make com-
munities responsible for preventing crime because it cannot play this role), is
also pertinent.
There are widespread allegations of police complicity in coercive community-
based ordering processes and some police officials have admitted that they tacitly
tolerate these activities. They have referred to taxi associations as being ‘in control
of vigilante actions’ stating that ‘They [the taxi associations] even went as far as
imposing a curfew after 21:00 in the evening. Everyone (including the police) was
very happy with the decrease in crime . . .’ (De Kock, 2012: 4). Although this was
admitted in the context of what happened six or seven years ago, police complicity
is still evident. Thus, a witness testifying at the Khayelitsha Commission stated that
the police had witnessed him driving with suspects in the back of his truck. This is
common practice in Khayelitsha: the idea being that the suspect(s) will accompany
the victim to retrieve the stolen goods. Given that in the majority of cases the
suspect is coerced into climbing into the vehicle (sometimes being made to lie
down in the trunk), this is kidnapping. However, in this and many other cases,
the police made no effort to charge the suspects and commence with investiga-
tions.35 A police officer told me that the police in Khayelitsha tacitly permit vigi-
lante actions because arresting suspects is ineffective, given that the courts give
them bail.36
Despite this lack of trust in the criminal justice system, the consistent call from
residents in marginalized communities is for a more intimate relationship with a
punitive state. This translates into a call for more arrests, visible policing and
punitive punishments—such as long prison sentences, denial of bail, and a
reinstatement of capital punishment. This brings to mind Zimring’s (2003: 62)
concept of ‘symbolic transformation,’ a process whereby the execution in
modern day America has been transformed from a symbol of state power into
one of victim’s redress, thus garnering support from people who generally distrust
the state.

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338 Punishment & Society 18(3)

Conclusion
As Garland (2013b: 506) points out, the Rule of Law and Bill of Rights, what he
refers to as ‘liberal institutions,’ are not the same as democratic institutions.
Whereas the former tend to constrain state punishment, the latter are not con-
cerned with restraint, but with punishing in accordance with what the majority
wants. I have argued that punishment in South Africa has, historically, been rela-
tively unconstrained by the minimalist considerations associated with liberalism
and that the traditions of grassroots democracy have been aligned with, rather
than against, harsh punishment. Therefore, in the context of a weak post-apartheid
state that lacks both authority and legitimacy, coupled with the historical residues
of violent modes of popular sovereignty, discursive nostalgia for the populist tech-
nologies of the 1980s is a dangerous game to play.
It is surely significant that the ANC was a centralist organization with a culture
of grassroots democratic activism and this peculiar mix probably made it more
punitive and less inclined to be constrained by liberal minimalism.37 Thus, even
though South Africa has what has been lauded as one of the most progressive
constitutions in the world, it is not enforced politically. It is also significant that
there are no ‘powerful organized interest groups opposing the expansion and
intensification of punishment’ (Garland, 2013b: 509) and that in fact, to do so in
South Africa is akin to committing political suicide.
This tension between the rule of law and democracy (Garland, 2013b) plays out
in the tactics of the Social Justice Coalition (SJC) precisely because it strives to be
both a grassroots activist organization campaigning for social justice and safer
communities. As such, the SJC faces punitive demands from its constituency to
whom the theft of an uninsured smartphone and/or television set represents a
severe loss in a context of overall poverty and disempowerment. Consequently, it
adopted a somewhat fuzzy Campaign for Safe Communities, which lacked a clear
policy framework and incorporated a predominantly situational crime prevention
approach, as opposed to an approach grounded in more critical criminological
theories.38
This tension results in what Hornberger (2013: 3) describes as a ‘seesawing
motion’ between calls for a more forceful state and harsher policing—by the
very people who are most at risk of police excesses—and protest against those
excesses. As a democratic organization, rooted in the traditions of grassroots activ-
ism but also espousing liberal values, this tension is present in the SJC’s campaign
against crime. Although it bravely criticizes police abuses of the Rule of Law, it
also presses for a more efficient system of policing, without paying much attention
to the punitive consequences that such change may have. These outcomes include
responses, such as the greater reliance on long-term prison sentences, that are
rooted in populist punitiveness.
Looking back, from the vantage point of 2014, it is clear that the South African
version of mass democracy exists uneasily, side by side, with its Constitution. As is
the case in the United States (Garland, 2013b), in South Africa, particularly in the
‘frontier society’ of Khayelitsha, the governance of crime has become a distorted

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form of grassroots democracy, with organized and unorganized groupings pressing

for more (rather than less) punishment and a more effective criminal justice system.
This is not to say that the criminal justice system could not be improved on but
instead to lament the narrowness of the debate, which marginalizes serious
attempts to address the root causes of crime and injustice, such as inequality and
poverty, simply because it is easier to focus on rendering the criminal justice system
more efficient and effective.
In this article, I have argued that in South Africa, the ‘community’ is used as a
tool to connect the state to the population, with both the state and vigilantes
claiming to act in its name. Yet, neither the ‘community’ nor the ‘mob’ are fixed
concepts but, instead, are fluid categories in a shifting field of power relations,
where a fractured and volatile solidarity is constituted around crime and crimin-
ality. As George Herbert Mead (1918: 591) states,

The criminal . . . is responsible for a sense of solidarity, aroused among those whose
attention would be otherwise centered upon interests quite divergent from those of
each other.

Khayelitsha’s residents, lacking the resources that the well-off have to deploy
private security, translate an exercise of police power (in other words, a punitive
criminal justice system) into a service for victims. In these marginalized spaces law
is not so much absent, as reconfigured, with the spectacles of legal and illegal
violence being graphically interwoven with each other. The ironic twist is that in
South Africa mob justice is in part a communal evocation, a mass technology, for
the protection of private property. Thus, it is essentially enforcing liberal notions of
private ownership in a context of endemic inequality.

Notes
1. The 2011 Census estimated the population of Khayelitsha to be 400,000 but, NGOs
such as the Social Justice Coalition, have estimated it to be as high as 750,000.
2. Most interviews were conducted in English, apart from with the victims of vigilant-
ism, which were conducted in isiXhosa via a translator.
3. Street committees arose during the 1980s as part of the mass campaign to resist local
government structures. At the time, they were both a ‘prefigurative ideal’ (Allison,
1990) of how the people could govern and also a tactic to fill the gap left by activist
campaigns to make the townships ungovernable (Adler and Steinberg, 2000).
4. This term comes from Darracq (2008).
5. The 1955 Freedom Charter is a populist statement of the core principles of the then
nascent liberation movement. It refers to ‘democratic organs of self-government’ in
its clause, the ‘People Shall Govern.’
6. Act 68 of 1995.
7. 51 of 1977.
8. Section 4(d) of the Criminal Procedure 2nd Amendment Act 85 of 1997.

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340 Punishment & Society 18(3)

9. Section 4(e) inserts section 8A into the original act, i.e. into section 60 (a) of the
Criminal Procedure Act 51 of 1977.
10. Section 4(d).
11. See S v T Makwanyane and M Mchunu Case No. CCT/3/94 (6 June 1995).
12. Interview with SANCO member, Site B RR informal settlement, 21 June 2013,
interview with chairperson of Father’s Committee, 1 February 2014, interview with
representative of a community patrol group, 1 February 2014.
13. Interview with chairperson of a community patrol group, 1 February 2014.
14. Interview with chairperson of Father’s Committee, 1 February 2014.
15. A colloquial term for gangster/criminal.
16. SANCO, which stands for the South African National Civic Association, was
formed in 1992. It is aligned with the ANC and its formation was an attempt to
bring all of the street committees (and civics) under the umbrella of one organiza-
tion. Interview conducted on 16 August 2014.
17. Interview with senior employee in the Department of Community Safety, Western
Cape Provincial Government, 14 April 2014.
18. Member of neighbourhood watch scheme, ‘P’ informal settlement, 16 September
2014.
19. Evidence given by Chumile Salie at the Khayelitsha Commission, 4 February 2014.
20. Street committee member, PJS informal settlement, 11 August 2014.
21. Interview with Chairperson of the ‘X’ South African National Civic Organisation
(SANCO) branch, 19 October 2013; interview with representative of a community
patrol group, 1 February 2014; interview with the chairperson of the Father’s
Committee, 1 February 2014; testimony by Nomakuma Bontshi at the
Khayelitsha Commission, 24 January 2014, testimony by Mr. Hendrickse,
31 January 2014 at the Khayelitsha Commission; interview with former member
of Amadlozi, 29 January 2014; interview with witnesses in the case I observed.
It should be noted that, although interviewees consistently referred to street com-
mittees as making the banishing decisions, this does not necessarily mean that these
bodies are affiliated to SANCO since the term is a code for many types of gather-
ings (Tshehla, 2002). I also came across street committees that were affiliated with
other political parties.
22. Evidence given by Colonel Nel.
23. Also referred to in the report as ‘bundu courts and mob justice.’
24. Property related crime is mostly recorded at the affluent suburban and Central
Business District precincts and, comparatively speaking, the Khayelitsha Police
station does not rank high on the property-related crime scale (Department of
Community Safety, 2009: 11).
25. Interview on 16 October 2013.
26. Interview on 29 January 2014.
27. This point was consistently made by all of my interviewees. See also Cooper-Knock
(2014).
28. Interview on 9 April 2013.
29. Interview on 13 April 2013.

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30. Interview on 9 April 2013.

31. See para 141.1.1 of Mlungwana’s affidavit to the Khayelitsha Commission
(Khayelitsha Commission, 2014).
32. Interview on 9 April 2013.
33. Camps Bay is an affluent, predominantly white, neighbourhood on the Atlantic
Seaboard.
34. Interview on 9 April 2013.
35. See the testimony of school principal Mr Mjonondwana given at the Khayelitsha
Commission, 28 January 2014.
36. Informal communication during court recess, 21 August 2013.
37. I use the term ‘liberal minimalism’ to refer to the rights enshrined in liberal democ-
racies: life, equality, freedom and security of the person, access to the courts, and
protection of the rights of arrested and detained persons. There is debate as to
whether the South African Constitution is minimalist or not because it protects civil
and political rights along with economic and cultural ones. See, however, Comaroff
(2009: 6) who argues that although the Freedom Charter was a populist document
the new constitution, with its ‘stress on individual rights, is perhaps not populist
enough.’ I am not arguing that liberalism is necessarily against punitive punish-
ments but merely pointing to the contradictions between some of the ANCs repres-
sive disciplinary technologies and the liberal constitutionalism that it adopted in
1994.
38. See para 144 of Mlungwana’s affidavit to the Khayelitsha Commission where the
call is for more visible policing, with no mention of the adverse consequences of
imprisonment.

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Gail Jennifer Super is a Research Associate at the Centre for Criminology,

Department of Public Law, University of Cape Town, South Africa. She received
her PhD in Law and Society from New York University. Her research in the field
of Punishment and Society is inter-disciplinary. She draws on sociology, criminol-
ogy, and law to examine crime prevention in marginalized areas, the politics of
punishment, and criminological discourse in South Africa. Apart from her book,
Governing through Crime in South Africa, the Politics of Race and Class in
Neoliberalizing Regimes (Ashgate, 2013) she has published in the British Journal
of Criminology, Theoretical Criminology and the South African Crime Quarterly.

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