Leave criminalization, focus on the criminal


In South Africa, violent crime is so out of control that even active war zones look peaceful by comparison. With this year’s election at hand, one would think that our political parties would pay attention to this serious problem. It doesn’t happen at all.

Everyone agrees that violent crime is a problem, but the so-called “solution” that comes up is of the same nature as one would expect in relatively safe societies: better policing!

If only it were that simple.

When we think of crime, we usually think of common law offenses such as murder, sexual assault, damage to property, fraud and so on. However, in reality there is thousands offenses recorded in our Law Book and even our Regulatory Book.

The government’s almost limitless ability to create new “crimes” out of thin air only really sunk in for many with the disastrous lockdowns during Covid-19, when so many aspects of our daily existence were, as it were, criminalized.


The Free Market Foundation and its Rule of Law Project is in the initial phase of an attempt to quantify exactly how criminalized South African society is today – and this under a Constitution that was precisely intended to move us away from an authoritarian order.

Most people will not know that a homeowner whose home is located in “an area” where “mining activities” (including prospecting and exploration) take place cannot deny access to employees of the Department of Mineral Development and Energy who are do not want to enter property. The Mineral and Petroleum Resources Development Act (MPRDA) clearly spells out that these employees do not even need a warrant – they can simply demand to gain access.

Refusal to comply can result in a fine of R100 000 or even imprisonment for the home owner.

The drafters of the Bill on the Control of Tobacco Products and Electronic Delivery Methods, which is currently before Parliament, did not want to back down an inch for the MPRDA. In terms of this bill, you, who work from home, or anyone else you employ in your home, will never be allowed to smoke in that home again when this new law comes into force.

Should the homeowner nevertheless smoke (or vape!) in his property, the penalty is a fine or imprisonment of up to five years. Imagine you ended up in a prison cell with murderers and rapists and your “crime” was that you, as a salesperson working from home, smoked or vaped in your own home.

In the end, the South African Police Service (SAPS) is expected to police both these crimes and the myriad others that our disorderly criminal justice system teems with. This is an impossible task for an institution that experiences a serious shortage of resources and in the long run is ill-equipped for their task precisely because of the government’s mismanagement and incapacity. Moreover, at the same time we expect the SAPS to protect us against real crimes – that is, violent crimes.

We all know it is for these reasons that the police fail to keep us safe and allow us to have a crime rate of 75 murders per day and a rape rate of five reported cases every hour of the day. To top it off, the National Prosecuting Authority (NPA), the other supposed bastion of law enforcement, boasts a conviction rate of just 15% for murder and 8% for rape.

Ultimately, the failure of the SAPS and the NPA lies at the door of the ministries of police and justice. Far-reaching reform is needed.

Dead letter

Article 12 of the Constitution, for the context in which South Africa finds itself, is perhaps the most important provision in our supreme law which is basically a dead letter. It states that every person has the right “to be free from all forms of violence, whether of public or private origin”.

Think about it.

What is a “public origin” of violence other than a government arresting homeowners for refusing a stranger entry into their home? And what is a “private origin of violence” other than the thousands of violent criminals that the government fails to bring to justice because the government is too busy hunting down peaceful South Africans who indulge in harmless but criminalized things keep busy?

To effectively tackle violent crime in South Africa, we must focus on the essence.

Of course we need to strengthen the hand of the police and prosecutors, build more prisons and devolve policing to both local and private actors.

In the last instance, however, we need to make sure our crime fighters focus on real crimes, rather than peace-loving homeowners watching over their property or – heaven forbid! – want to smoke in their own homes.

This means widespread decriminalization is needed, and it’s only good news that steps have been taken in recent years to decriminalize the recreational use of marijuana and the business of sex work.

The violence that plagues us will not be solved without serious and radical attention to our criminal justice system.

  • Martin van Staden is Head of Policy at the Free Market Foundation. Martin has an LL.M. (cum laude) at the University of Pretoria and is currently studying for an LL.D. at the same university. martinvanstaden.com

This article initially appeared on 15 February 2024 up Daily Friend appear.