The politics of policing: The state’s failure to snare culprits of serious public violence is no accident

In July 2021, two provinces in South Africa erupted in chaotic unrest, the causes of which still have to be understood. The government has alleged that 12 instigators were behind the unrest, yet very little concrete evidence has come to light about who they are. 

At least one case that has found its way into court has unravelled. Others may too, or they may fail to identify the kingpins. The risks of this happening are high as the state is under considerable political and public pressure to get to the bottom of what happened. Consequently, cases may be based on hasty police work, targeting what a State Security Agency (SSA) insider referred to as “the lowest of the low-hanging fruit” in policing and prosecutorial terms. 

These emerging trends in the crime and justice response to the unrest are unsurprising. In fact, they are consistent with a pattern that has emerged ever since the Justice, Crime Prevention and Security (JCPS) cluster identified domestic instability as a priority crime. 

In the chapter I have written for Destroying Democracy: Neoliberal Capitalism and the Rise of Authoritarian Politics, using police and prosecutorial data supplemented by interviews, I analysed the police and prosecutorial responses to the most recent wave of protests and strikes in South Africa, starting with the historic strikes in the platinum belt, as well as the #FeesMustFall student protests from 2015 onwards. 

The post-apartheid South African state has battled with how to respond to worker and community struggles, moving between using coercion and concessions coupled with limited incorporation into the political system. 

Changing forms of control

However, the capitalist downturn from 2008 onwards and subsequent anti-austerity protests and strikes have changed the forms of social control used by the security agencies of the state. This strike and protest wave led to the state identifying domestic instability as a major national security threat alongside other serious crimes, and responding accordingly. 

In view of the public backlash against militarisation of the South African Police Service (SAPS), brought into sharp focus by the Marikana massacre, the police sought a policing model that allowed them to practise less visible forms of social control, and intelligence-led policing provided them with just that. 

Intelligence-led policing was conceptualised in the US and the UK in the 1990s, but only really gained currency after the terrorist attacks on those countries in 2001 and 2005 respectively. As its name suggests, this form of policing is based on the assessment and management of risk, and the targeting of these risks by the police, in order to ensure more efficient uses of policing resources. 

However, intelligence-led policing blurs the lines between domestic policing and civilian intelligence, which can lead to a securitisation of policing where social problems are treated increasingly as security threats. As a policing model, intelligence-led policing is particularly predisposed to abuse given the high levels of secrecy attached to intelligence work. 

‘Disturb, disrupt and erupt’

For the SAPS, intelligence-led policing has been key to enabling them to “disturb, disrupt and erupt on crime”, in their words. The SAPS’ Crime Intelligence Division has become central to this new policing strategy, which has put it in a very powerful position indeed.

If police and prosecutorial responses to violent protests were proportionate to the levels of threat to public safety and national security, then it could be expected that the number of convictions relative to the number of arrests and prosecutions would be high, as the evidence of crimes having been committed would have been tested in open court and found to be credible. 

Therefore, it is instructive to look at patterns of arrests and convictions, especially in view of the “talk-tough” approach the state adopted towards violent protests over that period. This approach was informed by the Medium-Term Strategic Framework of 2014-19, which included ensuring “domestic stability through the successful prosecution of criminal and violent conduct in public protests”, and which was operationalised by the JCPS cluster.

By 2015, when the #FeesMustFall protests started, the SAPS concentrated on “[improving] the detection rate and trial-ready case dockets towards successful prosecutions of criminal and violent conduct in public protests”. Crime intelligence generated a huge number of intelligence products despite disarray in the division.

Focus on public violence

The National Joint Operational and Intelligence Structure (NatJOINTS) increased its capacity to coordinate and monitor all public order-related incidents. The SAPS also assigned dedicated detectives and crime intelligence gatherers to focus on public violence-related incidents. 

Between 2016 and 2017, the SAPS’ intelligence-led approach towards the protests matured. It continued to prioritise improvements in the investigation and prosecution of criminal and violent conduct in public protest. However, in spite of the overall increase in the number of intelligence products, the SAPS was unable to meet its targets for convictions of those responsible for violence in protests and industrial action. 

Owing to the difficulties of achieving prosecutions in protest cases, at that stage the SAPS decided to do away entirely with performance indicators relating to criminal and violent conduct in protests and industrial action. 

By 2017, frustrated by the inability of government departments to address the issues giving rise to protests, the SAPS requested that government departments find ways of reducing the number of protests. By then, the SAPS had made 207 arrests and opened 51 cases against #FeesMustFall protesters. 

The number of intelligence reports generated for early-warning proactive interventions, as well as tactical interventions, including in relation to protests, was above the SAPS’ target, although the number of strategic intelligence reports was well below target. 

However, only about half of proactive and reactive intelligence reports were operationalised. So, in spite of the SAPS consolidating its intelligence-led approach during 2016 and 2017, there were clearly inefficiencies in the system. This approach failed to raise the conviction rates to their hoped-for levels.

High conviction rate

Despite instability and political meddling, the National Prosecuting Authority (NPA) achieved an extremely high overall conviction rate of 93% by 2015-16, so it was to be expected that it would only prosecute cases that it had high expectations of winning. Like the SAPS and in line with the JCPS cluster directive, the NPA also identified violent protests as one of the crimes for prioritised prosecution. 

However, most cases against #FeesMustFall activists fizzled out at the prosecutorial stage. Largely, those convictions that were obtained turned out to be not serious at all. This was evident from the fact that the SAPS and the NPA were willing to negotiate around these cases and agree to alternatives to incarceration. Yet, more serious cases of grand public violence remained unsolved.

Possibly the most significant security cluster failure over this period was around the indisputably violent protests in Vuwani in 2016, when a total of 29 schools were burnt down after mass action against the Municipal Demarcation Board’s decision to demarcate eight wards into the Vhembe municipality, and which caused great unhappiness in the area. 

Those responsible still have to be held to account, despite the former minister of state security, David Mahlobo, indicating a year before the protests took place that the SSA was aware of unhappiness about demarcation issues. 

Well-organised acts of public violence continued to escalate at the time, including the repeated attacks on trucks driven by foreigners and the xenophobic killings of foreigners. International NGO Human Rights Watch criticised the government for its failure to protect foreign truck drivers against attack or mount effective investigations to stop the attacks. 

Unsolved assassinations

By this stage, scores of political assassinations and assassinations of whistle-blowers – which had picked up from 2011 onwards and which had the potential to spiral into domestic instability – remained unsolved, too. 

At the time, law clinics were very busy defending protesters who were arrested and convicted, so I set about obtaining their insights into the trends they had noticed. According to the Socio-Economic Rights Institute (SERI), they handled 40 protest-related cases since 2014, and only one of those led to a successful conviction. Most cases were withdrawn once SERI made representations to the NPA. 

SERI’s Nomzamo Zondo observed that the police used public violence as a nebulous, catch-all charge to justify arresting protesters, even if there was no cause to do so. In SERI’s experience, the police seemed to consider protests per se as being public violence. As a result, they would order a protest to disperse and then arrest those who ran away, and then charge them with public violence. 

According to the Right2Protest Project – an advice and referral service representing a coalition of civil society organisations focusing on freedom of assembly – the police often targeted conveners as the most visible participants in protests. The police also kept accused people in jail for as long as possible, and changed charges depending on which ones had the greatest prospects of success. 

These trends in the policing and prosecution of protests suggested that security responses to violent protests were limited in their “success” as defined by the SAPS and the NPA’s own performance indicators, which, after all, was the basis for domestic instability becoming a priority focus in the first place. 

At the same time, the SAPS and the NPA preferred to focus on low-hanging fruit in police and prosecutorial terms. These responses provided the pretext for over-policing of legitimate protests, thereby limiting spaces for the expression of dissent and practices of direct politics that use disruption to challenge and change how society is organised. What the police considered to be a “violent protest” was very broad indeed, and extended to protests that were merely disruptive.

Blind spots

In an interview in 2018, Blade Nzimande, who was minister of higher education at the time of the #FeesMustfFall protests, and who subsequently became transport minister, commented on these intelligence and security blind spots:

There are certain things that don’t make sense to me… [Why] wouldn’t you pick up the burning of so many schools in Vuwani? Even with the #FeesMustFall [protests], some of the destruction that was happening. You know, in one of the universities I was told that the people who were doing this damage and burning of things, including the library at one institution, were outsiders. They were not students. But they did not pick it up. Does it mean, could it mean… Even now you can see now with the burning of trucks and the blocking of the toll road in Mooi River [one of the scenes of the truck attacks]... I don’t know, but you could hypothesise that the increasing capacity of state security has got more to do with issues of state security than the safety and security [of the people].

It is difficult not to conclude that the intelligence failures around specific acts of public violence were not accidental or episodic. Rather, they suggested a deep structural logic, where the intelligence, security and prosecutorial agencies poured extraordinary efforts into investigating less serious cases of public violence (often with limited results). 

At the same time, the agencies failed repeatedly to hold to account perpetrators of more serious cases of public violence or domestic instability, if doing so risked eroding or alienating parts of the ruling ANC’s support base. Why these structural biases exist and how they reproduce themselves still needs to be understood more clearly.

The police and prosecutorial response to the recent unrest is a space to be watched closely. Not only will it be a test of their ability to respond appropriately, but indirectly it will also be a test of the ANC’s resolve to clean its own house. Failure to do so is likely to lead to the true perpetrators of the most serious acts of domestic instability escaping prosecution, while those who are more vulnerable and politically expendable take the fall. DM/MC

Jane Duncan is a professor in the Department of Communication and Media at the University of Johannesburg. 

This is the eighth in a series of 10 essays by authors of chapters in Destroying Democracy, neoliberal capitalism and the rise of authoritarian politics, Volume 6 in the Democratic Marxism series recently published by Wits University Press and edited by Michelle Williams and Vishwas Satgar. 

Part 1: https://www.dailymaverick.co.za/article/2021-11-08-the-crisis-of-democracy-the-importance-of-reclaiming-democracy-from-neoliberal-capitalism-and-creeping-authoritarianism/ 

Part 2: https://www.dailymaverick.co.za/article/2021-11-08-populism-and-fascism-lessons-from-the-1920s-ku-klux-klan/

Part Three: https://www.dailymaverick.co.za/article/2021-11-10-brazil-faces-an-inglorious-end-to-a-democratic-experiment-that-has-marked-two-generations/

Part 4: https://www.dailymaverick.co.za/article/2021-11-10-how-do-we-explain-indias-descent-into-religious-majoritarianism-and-empty-promises-of-prosperity/

Part 5: https://www.dailymaverick.co.za/article/2021-11-11-the-dialectic-of-democracy-neoliberal-capitalism-and-its-populist-backlash/

Part 6: https://www.dailymaverick.co.za/article/2021-11-14-the-ancs-failure-to-fully-embrace-the-right-to-know-signals-a-retreat-from-a-peoples-democracy/

Part 7: https://www.dailymaverick.co.za/article/2021-11-16-media-and-democracy-a-case-for-decommodification/

Destroying Democracy is an invaluable resource for the general public, activists, scholars and students who are interested in understanding the threats to democracy and the rising tide of authoritarianism in the Global South and Global North. It is freely available as open access at https://library.oapen.org/handle/20.500.12657/50256

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