The worse crime becomes…


By David Ansara

In political theory, there are many competing conceptions of the role of the state. In the classical liberal tradition, the most basic function of government is to protect and uphold the rights and liberties of citizens.

The state is necessary to uphold the rule of law, enforce contracts and ensure private property rights. The state is also tasked with preventing crime and defending the safety of the person. The government must use its considerable power to “keep the peace” and enable individuals to prosper.

However, the reality in South Africa is that the government fails to fulfill even its most basic duties towards citizens. The most obvious embodiment of this failure is South Africa’s high levels of violent crime.

According to the fourth quarter in 2023 data from the SAPS, an average of 86 people are murdered every day (three of whom are children) and 136 rape cases are reported every day.

These numbers reflect only reported crimes.

As disillusionment with the police grows, weary victims become less likely to report crimes committed against them. The criminal justice system is increasingly incapable of securing successful convictions against alleged criminals. In 2023 there was a paltry 8% conviction rate, mostly due to the inability of the police to maintain its overall detective and forensic capabilities. Corruption is common in the police, and many case files are made to “disappear”.

The National Prosecuting Authority (NPA) is understaffed and unable to successfully prosecute most cases due to insufficient evidence, political interference or a lack of available prosecutors. Criminals are also becoming smarter and more organized. Criminal syndicates hold the mining and construction industries to ransom, while heavily armed gangs attack trucks on national highways and loot or steal copper cables from critical infrastructure. Senior detectives and witnesses are killed, and prosecutors are intimidated.

South Africa’s long, porous border makes it difficult to control who enters the country. This makes the country vulnerable to multinational organized crime. According to the Global Initiative Against Transnational Crime, South Africa now ranks seventh in its Global Organized Crime Index 2023 (up 12 places from 19th in 2021).

In a violent society like South Africa, you would expect the government to prioritize the building of additional prisons to accommodate the growing number of offenders. In fact, our prisons are on average 40% over capacity.

While criminals deserve to be punished for their crimes, these overcrowded conditions are intolerable in a decent society, where violent criminals mix freely with those detained for minor offenses. Convicts, as subordinates of the state, are entitled to basic protections against the incredible violence often inflicted on them by the serial rapists and murderers who share their prison cells.

In addition, numerous people were imprisoned by the police despite not being formally charged with any crimes. Too poor to pay bail, they remain trapped in legal purgatory until their case can be heard before our overburdened courts.

The paradox is that as the South African government fails to deal with the violent crime epidemic, it simultaneously expands the scope of what “crime” means and thus criminalizes our private lives and businesses in a desperate attempt to stop the pretense of to preserve state authority.

This makes life even more difficult for honest, hard-working citizens who are already struggling to get by in a slower economy. Meanwhile, the real violent criminals operate with impunity.

It is this paradox that compelled the Free Market Foundation to start the Article 12 initiative – so named in reference to article 12 of the Constitution, which enshrines the freedom and security of the person. This provision recognizes your inalienable right to be protected from violence committed either by the state itself or by other actors in society.

Election agenda

Citizens seem to have become desensitized to the country’s chronically high levels of violence. The Article 12 initiative therefore aims to put violent crime firmly on the electoral agenda in the run-up to the general election on 29 May.

The initiative also seeks to highlight the urgent need for decriminalization of certain legislation to free the economy from unnecessary rules and regulations that punish law-abiding citizens while allowing serious violent offenders to get off scot-free.

To this end, the Section 12 Initiative recently launched its Criminalization Index. The index is still in its early stages of development, but in time will comprehensively quantify the extent of the unnecessary criminalization that exists in our statutory, regulatory and judicial law.

There are many cases of state overreach highlighted in the index. For example, if you operate a tourist transport service without accreditation by the National Public Transport Regulator, you can face up to two years in prison or a fine of R100 000. A wholesaler can be fined up to R100 000 for not displaying a tobacco product in the prescribed manner.

These are just two of the excessive and unjustified rules that hinder economic growth and exacerbate unemployment that the Section 12 initiative seeks to highlight.

It is time for politicians to take violent crime more seriously by investing significant resources and political will to fix our broken criminal justice system. At the same time, they need to do away with the bad laws that punish ordinary people for acts that should not be classified as crimes in the first place.

  • David Ansara is chief executive officer of the Free Market Foundation.