Marking 25 Years of Democracy in a Time of Lockdown

Guest editor’s introduction

As I write this, in the middle of a lockdown imposed to curb the spread of the COVID-19 pandemic, the limitations of the post-apartheid endeavours to build a new society based on equality are evident. These shortcomings often create problems in implementation of measures to protect the population from infection, because the conditions of existence of poorer sections of the population often make it impossible for them to fully comply with the regulations of the lockdown. This could frustrate efforts to contain the coronavirus which causes the disease, and it could prolong the havoc that the virus may cause.

Containing the spread of the virus requires certain behaviours – keeping a ‘social distance’ from one another, and hygiene habits such as washing hands regularly – which are undermined by the entirely different experiences of the lockdown encountered by the poor compared to the more well-to-do sections of the population. The difference in experience is not subjective, namely a question of states of mind, but relates to objective conditions of existence, including a lack of housing and other facilities. This is a worldwide phenomenon, but there are higher levels of poverty and inequality in South Africa than in just about every other country on earth, according to various measures of the gap between the wealthy and the poor (see, for example, Statistics South Africa, 2019; Webster, 2020).

Apartheid is supposedly no more, but there is no denying that patterns of relationship and living conditions are in many respects akin to, and in many cases continuations of, the divisions of the apartheid past.

What is not working well in the current lockdown and is resulting in conflict bears a direct relationship to the continuation of apartheid-style inequalities and practices of coercion, and policing practices in enforcing the lockdown, often against people who live in conditions that make observance of the regulations very difficult.

The post-1994 building of democracy has comprised significant advances away from and ruptures with the apartheid and colonial past. It has also comprised continuities, and some of these have a bearing on the extent to which the state can adequately manage and facilitate compliance with the lockdown in different contexts and thus contain the spread of the virus.

If one travelled around or saw photographs or videos of the cities and the wealthier suburbs during the first phase of the lockdown, one would see that the streets were deserted, and when residents visited shops for supplies in the suburbs, they queued and kept a ‘social distance’ from one another. The presence of police is minimal in these areas (see photographs of Johannesburg in New Frame 2020) and drone footage of Cape Town (Caboz, 2020)). This difference continues to be manifested with the continuation of the lockdown, despite a gradual relaxation of restrictions.

But the lockdown operates with the same regulations in other areas, where the living conditions of the residents are precarious and very different from those of residents in the wealthier parts. Settlements inhabited by the poor, almost entirely black and on the outskirts of cities and towns, often consist of makeshift shacks housing large numbers of people without access to basic facilities to wash, and little or no access to electricity. Raw sewage sometimes flows into the streets. Communal toilets and water facilities, where these exist, are often shared by large numbers of people. Those on the margins are not only in the cities but also in rural areas, many of which are without access to clean water and other means of sustenance.

It was not foreseen that the persistence of these inequalities would come to pose a health and existential threat to South African society as a whole. The conditions prevailing in these more impoverished areas were not always immediately visible to those who lived in greater comfort. The enforcement of the lockdown has brought these inequalities into greater public visibility in some of the big cities and surrounding areas, and there has been much international media coverage of them. Thus far there has been much less reportage of the lockdown as far as policing in the rural areas is concerned, although there have been reports of lack of food, water, sanitation and other requirements for health.

Insofar as people who live in poorer areas are still often unable to practise basic hygiene required to contain the virus, they interact with and touch surfaces used by others. If an infection has been contracted, it spreads more easily in home environments, taxis, which often travel with all the windows closed, shops that people may visit, and workplaces where individuals have been allowed to return to work.

Without this being addressed (and at a speed that may be impossible to realise), the spread of the virus in townships, informal settlements and other poorer or ‘irregular’ forms of living is hard to contain. That very many people live in shacks means that the large numbers that inhabit these small dwellings cannot easily stay inside these together for the whole of any one day, as required by lockdown provisions. If they were to remain inside that would itself constitute a danger, insofar as their living conditions demand relatively close contact with one another.

They tend to spill over into yards and streets. That is how they existed before the lockdown, and the scale of their problems is so great that there was not an alternative on hand at the onset of the lockdown. In many respects, it appears impossible for these people to comply with lockdown provisions relating to hygiene and space usage. They face danger themselves, and insofar as their chances of infection are higher, they risk all with those with whom they interact.

It is not peculiar to South Africa that guidelines for social distancing cannot be complied with as easily, if at all, in some parts of the country compared to others. Indeed, the spread of the virus in the United States appears, according to numerous reports covering different cities, to have disproportionately claimed the lives of poor and black people (Evelyn, 2020).

That people live in these conditions stems from 25 years of uneven development, entailing little or no improvement in some areas, after apartheid. Previous decades have seen patterns of conduct in leaders and people close to them that have been incompatible with the needs of the poor, and that have often represented fraud and illegal diversion of funds derived from tenders, especially during the tenure of former president Jacob Zuma. This has impacted on programmes that, had they been properly implemented, may have alleviated some of the inequalities and squalor that are the lot of the poor. The failure to provide housing, sanitation, water and other basic needs such as electricity and healthcare is not simply a case of stretched resources, but of multiple cases of corruption, which have often related to tenders to provide for these needs to be met. ¹

Video footage on news sites has captured residents walking around, for example in the Diepsloot informal settlement, just to have some space to breathe or give others privacy, which is technically a breach of lockdown provisions, or en route to one or other shop to buy food, which is theoretically permissible (SABC News, 2020). This movement has invited police attention. But police attention has also often been directed against those who have a reason for leaving home that is compatible with the lockdown provisions, and police responses have often consisted of acts of brutality. Ensuring that the lockdown provisions are observed is not only an unachievable task in many of these areas, but the police interface with the residents often runs contrary to constitutional duties to respect the lives, dignity and freedom of all South Africans (see the Constitution of the Republic of South Africa, Act 108 of 1996, sections 7(1–2), 9, 10, 12, for example, and the judgment of Justice Hans Fabricius on the killing of Collins Khosa by the South African National Defence Force (SANDF), reprinted in Nicolson, 2020, and see SABC News, 2020).

Now, into the 26th year of democracy, while addressing the coronavirus pandemic, government has moved to speed up water provision, a task that, because of its planned large scale, has been hard to implement and does not appear to have reached many targeted communities (Ellis, 2020).

Unlike in other states, these conditions represent, in South Africa, a deviation from the supreme law of the land, the Constitution, which goes beyond provisions in other constitutions in imposing an obligation on the state to meet the basic needs of inhabitants (see the Bill of Rights, Chapter 2 of the Constitution and the article by Lucky Mathebe in this issue), insofar as people still live in squalor in fragile, makeshift shacks, from which they are frequently evicted. This is contrary to the spirit, if not the letter, of the Constitution, as well as judicial decisions that have related to such infractions by the state (Grootboom and Others v Government of the Republic of South Africa; ² South African Human Rights Commission, nd).

Into this mix the South African Police Service (SAPS) and the SANDF entered in 2020, sometimes with municipal police and private security companies, to enforce the lockdown. Insufficient weight has been given to other options, involving community involvement in promoting compliance. In China, neighbourhood committees, affiliated to the Communist Party, were used, and these appear to have generally been less coercive.

In post-apartheid South Africa, security forces have a record of exceeding what is allowed by law and often using force illegally. (See the contribution by Guy Lamb in this issue, where the predominance of militaristic policing is described.) The policing of the lockdown has demonstrated high levels of irregularity and brutality on the part of these forces and sometimes together with private security, who have been reported to have shot rubber bullets at people, despite not being permitted to use force or firearms unless in self-defence. It has also been used to conduct evictions, which are expressly prohibited under lockdown regulations.

The poor often wish to comply with the regulations and fear contracting or spreading the virus. However, they find it hard to comply with regulations that do not take adequate account of their living conditions. The security forces do not acknowledge this difficulty. The interplay between these communities and those who enforce the regulations is an inherent tension which has erupted in repeated acts of violence, including alleged murders. There are rules for the lockdown, and, in the first place, the police see people who are or may be acting in breach of these rules, often ignoring the reasons that they give for non-compliance with the regulations. Insofar as the reasons relate to living conditions, these do not affect the police’s methods of enforcement. That there are not adequate guidelines for SANDF and SAPS enforcement emerges in the judgment stemming from the death of Collins Khosa, referred to earlier.

In many cases, the security authorities have sought to disperse those who are walking close to one another on the streets or paths, in violation of lockdown provisions (eNCA, 2020; Marais, 2020). The security authorities do not seem to work with grades of reaction, building up to arrests or the use of force only in exceptional cases, as noted in the Fabricius judgment. They have used excessive force and brutality, in some cases causing deaths. This is not a phenomenon that has emerged during the lockdown but is a continuation of behaviour patterns that are well established (see the Lamb article, this issue).

The Minister of Defence, Nosiviwe Mapisa-Nqakula, voiced her regret at the alleged murder of Khosa, an Alexandra resident, by the SANDF (Zulu, 2020). Mapisa-Nqakula said the defence force will not defend what happened. ‘We hang our heads in shame that we have lost a person in some of the communities and we will not at any point defend what happened’, she said (Zulu, 2020).

Nevertheless, her sentiments were ambiguous, as she implored residents not to ‘provoke’ security forces (Zulu, 2020): ‘At the same time, the minister insisted that soldiers must not be provoked and people should stay at home’ (Hunter, 2020; see also the Fabricius judgment).

The Minister of Police, Bheki Cele, in an earlier incarnation as National Commissioner of the South African Police Service, exhorted police to ‘shoot to kill’, and has expressed no regret and appears to have denied almost all of the abuses (Ngcukana, 2020). When he has admitted to police action, even when it was illegal, he has sought to explain that the conduct to which people object would not occur if they abided by lockdown provisions. This appears to be so with the reports of police making people do strenuous physical exercises (Zulu, 2020).

Cele is reported as saying ‘I hear there is a complaint that police, together with soldiers, are frog-marching people. Now, I don’t think there is anyone who can be frog-marched in his bedroom. Where were you when you were frog-marched?’ (Ngcukana, 2020).

‘Police and soldiers are being blamed while the people who are breaking the law are not being criticised. I have not seen a police officer or soldier going to people’s homes saying they must frog-march. I see only people being frog-marched to their homes’, he said (Ngcukana, 2020).

In other words, Cele did not deny that police (and the SANDF) forced individuals to perform demeaning, humiliating conduct (and there are many photographs and videos and news reports of this happening in conventional and social media). He condoned it because the victims of police abuse were allegedly in breach of the lockdown regulations.

There does not seem to be a public record of situations suggesting security forces were responding to provocation or aggression emanating from residents in the affected areas. However, there are cases of community anger. These expressions of public anger tend to relate to the failure of the state to provide social grants and food parcels supposedly destined for them, and the resultant hunger has led to looting of food and similar acts of desperation.

The Ministers did not allege that there is any general defiance. It has not been claimed that there have been attacks on security forces. The provocation spoken of by the Minister of Defence has not been proven or been demonstrated publicly (Reddy and Allison, 2020). But what is documented is that security forces have fired rubber bullets randomly at shoppers, including in Yeoville, adjoining the Johannesburg inner city (Ntshidi, 2020), or they have dispersed people through the use of firearms, often without warning, as is required by law, in some cases causing deaths.

Some video footage of Hillbrow depicts police terrorising the local population through the use of sjamboks (heavy leather whips, which are not part of official police weaponry) or random firing of rubber bullets or other weaponry. In many cases, those operating with the security forces wear plain clothes and carry no police identification, or refuse to provide this, as required by law, when asked by the media (Ntshidi, 2020).

While we may condemn security force acts of brutality, it needs to be recognised that the lockdown in poorer areas operates with an irremediable tension. This is not acknowledged or recognised by the security forces. As indicated, the inequality that prevails in living conditions often makes it virtually impossible for the local population in poorer areas to comply with the lockdown, and policing aims to enforce on a population that with which they often cannot physically comply.

The unrestrained use of force by security forces does not stem from the personality of Bheki Cele but has been part of the method of governance under colonialism and apartheid and in earlier periods of post-apartheid South Africa. The notion of the police emulating the partly fictional British image of the friendly ‘bobby on the beat’ has not been attractive for the SAPS, despite initial attempts to civilianise policing as a service and to build ‘policing with consent’ after the onset of democracy (see Lamb’s contribution, this issue). Cele is not the first person to have urged police to shoot to kill or to have condoned relatively unrestrained use of force (De Vos, 2008).

Whether the judgment of Fabricius will limit police excesses remains to be seen. Statements of Cele do not indicate acceptance of the courts’ strictures, and violent acts by police officers continue at the time of writing (Retief, 2020). Furthermore, the SANDF enquiry into the death of Khosa appears to be a ‘whitewash’ (Rose, 2020).

COVID-19 and the lockdown could obviously not have been foreseen when this special issue was conceived. However, there is a direct relationship between the forms of existence of South Africans, covered in the articles that follow, which bears directly on how we understand the very different present within which the authors’ contributions are now read. The multiple conditions of inequality and incidents of indignity and repression referred to by these authors relate directly to current experiences of lockdown.

The contents of this special issue

The framing of the articles that follow, relating as they do to the trajectory of various aspects of post-apartheid democracy, have relevance to the present, dominated as it is by the COVID-19 pandemic.

Many sections of the population that are particularly hard hit or discriminated against in the lockdown have their conditions addressed in the contributions that follow, whether concerning refugees, LGBTI (lesbian, gay, bisexual, transgender and intersex) people, the law and the criminal justice system, official brutality, corruption, the right to dignity, being white and being black, and the spatial apartheid that still prevails in South African society.

The focus of this issue was intended to be a fresh investigation of the quality of post-apartheid democracy. Contributions were expected to move beyond a ‘checklist’ and to probe general questions regarding the meanings of democracy and transformation, in history and today, in the local and international contexts in which South Africa has found itself. Insofar as all authors acted in fidelity with this objective, none of these articles is rendered irrelevant by the unprecedented and dire conditions South Africans now encounter.

Lucky Mathebe writes on the Constitutional Court’s ‘activist’ role, and its interpreting the Constitution as a ‘living constitution’. This is quite different from the role of the courts in pre-democratic South Africa and that of most other states, and it goes beyond that of the United States Supreme Court, whose interpretation of the constitution through judgments that developed existing law was a standard for many who favoured a progressive judicial role. Not only do the actions of the courts remedy the racism of the apartheid era, but parliamentary sovereignty, which prevails in many Commonwealth states, is displaced by the supremacy of the Constitution, interpreted by the courts, and primarily by the Constitutional Court.

Mathebe illustrates his analysis through three key judgments, namely the S v Makwanyane case, which led to abolition of the death penalty; the Nkandla judgment, which found that former president Jacob Zuma had been unjustly enriched through ‘security’ improvements to his home in Nkandla, which went well beyond what could be classified as security needs; and the Public Protector’s findings on state capture, in this case her analysis of a judgment of the Gauteng High Court.

Central to Mathebe’s discussion is the Court’s awareness of the letter and the spirit of the post-apartheid constitutions (the interim one of 1993 and the final Constitution of 1996), Constitutional Court judges having very consciously recognised the change of context of lawmaking and judicial decisions, and the need to take adequate cognisance of the history of dispossession, oppression and loss of dignity. The notion of dignity is a concept on which great weight is placed, and it is widely considered as an influence on the Court’s functioning, affecting its interpretations not only of insults but also of social, economic and other security, which affect the personal well-being and self-esteem of the people of the country.

Chris Oxtoby’s contribution on the role of the Judicial Service Commission (JSC) in the appointment of judges is complementary to the work of Mathebe, in that judges with these responsibilities require specific qualities. Insofar as judges, especially in the Constitutional Court (and, to a significant extent, other courts), carry out a newly acquired ‘activist’ role, how they are appointed is crucial in ensuring that those who ‘make the cut’ possess the qualities required to ensure that the Constitution does become a living document, interpreted in a manner that conforms to its transformative spirit.

Oxtoby’s work examines how the JSC operates in an environment where crucial aspects of its functioning remain obscure. There is no clarity on exactly what qualities are needed to be appointed, and the members of the JSC have not made public what they believe is required and, indeed, do not appear to have agreed among themselves.

It is argued by Oxtoby that the high representation of politicians on the JSC has led at times to excluding human rights lawyers from appointment, that is, those lawyers who have been involved in cases defending the rights of people to protection from abuse or injury by the state. Very often these are the same lawyers who also played that role, championing the rule of law in defence of individuals under attack from arbitrary actions of the apartheid regime. In the JSC, stress is often placed on questioning candidates on the separation of powers doctrine, in order to establish whether such lawyers, if appointed to a court, would in their decisions be seen by public representatives to encroach on the prerogatives of the legislature or the executive, especially when setting aside actions or legislation of these bodies.

Fatima Khan, Siphokazi Mbatani and Charlotte Marais discuss the plight of refugees under a reconstructed law, which supposedly provides them with the opportunity to enjoy almost every right that accrues to South African citizens. This follows from the country’s adoption of international law instruments (without any reservations, as have been made by other African countries) and what is specified under the Constitution.

They argue that South African legislation, after apartheid, is in line with international trends that recognise the right of refugees to protection and participation in the life of the countries that they have been forced, by migration from various conditions in their countries of origin, to make their home. The South African Constitution itself is clear that all but a few rights belong to ‘everyone’ in the country, and there are a very limited number of cases where application is restricted. This legislation provides for all that is legally necessary for the local integration of refugees. Once the state has determined who is and who is not a refugee, refugees are entitled to identity documents and are free to enjoy various social and economic rights, intended to facilitate their integration into their adopted country. Regrettably, realisation of these rights, notably through delay or refusal to provide refugees with the necessary documentation, is in practice nullified for very many.

Refugees are among the most marginalised people in contemporary South Africa, and those who also identify as LGBTI are doubly victimised by police and some members of communities.

What is clear from their account, and this is not a unique finding, is that the Department of Home Affairs is a law unto itself (or lawless), in that it has ignored a range of judgments that have called for the reopening of offices that had been closed by Home Affairs, in Cape Town and other areas, where refugees have needed to go in order to regularise their stay through receiving documentation. It often requires travel at their own expense to other parts of the country to have the issue addressed, and many of the officials they meet are unsympathetic or insufficiently apprised of their duties under the relevant legislation.

The truth of the matter is that despite the post-apartheid constitutional commitment to rights as universal, there is a strong xenophobic tendency among politicians. Insofar as members of the public may blame foreign nationals for their hardships, there is no leadership from the national government emphasising the rights of all and the debased nature of xenophobic victimisation, which undermines the foundational values of the Constitution (Suttner, 2019).

Despite their evidence, the authors are ready to see good in the intentions of the powers that be. They comment as follows about the period after the 2008 xenophobic outbreaks: ‘This was a difficult time for [refugees], but it was also a time for intense reflection by ordinary South Africans, and it forced the government to take action to protect everyone present in the country.’

It is unclear to me that there was this level of reflection, or that significant steps were taken to ensure protection of everyone present in the country. The year 2008 was one of many years of extensive attacks on foreign nationals, although not always entailing large-scale killings. These have continued, and, as the authors note, they have sometimes been with the collusion of police and other authorities. In the middle of the lockdown, xenophobic actions and decisions are still being undertaken by the authorities, denying food or jobs to refugees. There also continue to be arrests and deportation of ‘undocumented migrants’. One wonders how refugees are supposed to regularise their stay during lockdown when offices have been closed, and how many would have had their documentation regularised earlier had the authorities acted properly and in good faith.

In referring to pre-1994 practices in relation to human rights law, the authors indicate that being white made assimilation unproblematic. What needs to be said is that those assumptions may persist. The refugees referred to in the article are black, and those who arrive from the North and are white are generally free from any of the victimisation that black refugees experience.

Cheryl Hendricks and Nkululeko Majozi provide an overview of South Africa’s post-apartheid foreign policy. Despite the country’s involvement in a range of international fora, on the continent and beyond, one has the impression that not much has actually been achieved in the sense of realising stated goals for the continent and beyond. Being located in the leadership of one or other institution does not necessarily mean that one has a great influence on developments. Having ideas about how international relations should develop is very different from having the means to effectuate these. Many of the commitments that South Africa has made, for example in advancing human rights internationally, are dependent on multilateral efforts and cannot be achieved without cooperation from other states. These states, as is the case in the Southern African region and the continent as a whole, may be less committed to these values than is the case, at least formally, in South Africa, given its progressive constitution.

While the authors acknowledge this in relation to the early (failed) attempt by first democratic president Nelson Mandela to isolate the Sani Abacha Nigerian government after the execution of Ken Saro-Wiwa, without reliable multilateral support, they nevertheless suggest that South Africa may go it alone, provided it has public support in the country:

South Africa, as a middle power, needs to restore trust and confidence, in its soft power, as this is what has deteriorated, especially during the Zuma administration. It has to be the ‘responsible international citizen’ again, in both word and deed, and this will often mean that it has to do extensive lobbying in multilateral forums and/or at times stick its neck out and go it alone. If the government chooses the latter path, it has to take its citizens on board, so that they become its support in what will be turbulent waters when one swims against the tide. It has to reoccupy the moral high ground.

How can that work in international relations, given that South African foreign policy operates in relation to all other states and needs their support, not only that of its citizens, to achieve goals beyond a statement of purpose?

One also wonders whether some of the glow of South Africa’s commitment to human rights in the early years of democracy has not become tarnished, not only through the many xenophobic attacks, where little, if any, accountability of perpetrators has been seen, and often with state complicity, which the authors mention. But also the repression in the present lockdown has elicited international condemnation of the country’s security practices. As indicated, these actions often amount to containing the effects of inequality through repressive action. They are not simply features of the period of lockdown but represent continuing structural factors from apartheid into post-apartheid South Africa, periodically requiring coercion in order to contain the resultant protests and other fallouts.

One thing that strikes the reader is that South Africa, whether as a mediator or as chair of one or other regional or continental body, has propagated efforts to achieve ‘good governance’ and combat various ills, when it has itself, as mentioned by the authors, become mired in corruption.

Jonathan Klaaren explores the place of regulatory authorities, which manifest ‘regulatory politics’ in contemporary South Africa. He locates this within what he sees as a shift from a developmental to a regulatory state. Much of the article classifies what he understands by regulatory authorities, where they are located and their focus. He suggests that these diverse authorities have come to play an important part in South African politics, both in regulating public and private activities and in contestations, notably that of the Treatment Action Campaign (TAC) over the provision of HIV/AIDS medication.

His classification of regulatory institutions includes ‘standard regulatory institutions’, such as the National Energy Regulator of South Africa (NERSA) and the Information Regulator, both established by statute, governing specific areas of the economy and those like the two competition authorities, whose work covers the entire economy.

Forming an important category within ‘regulatory authorities’ are Chapter 9 institutions, such as the Public Protector, the South African Human Rights Commission, the office of the Auditor-General and others, which he describes as ‘super-regulatory authorities’, which have in some situations (notably in the case of the Public Protector) played an important role in defending South African democracy, in the period of ‘state capture’.

While much public coverage of regulatory politics relates to issues such as electricity pricing, it is interesting to note its presence in interactions between authorities and citizens operating ‘from below’ in the TAC, seen as an example of collective action ensuring democratic citizenship. Drawing on the work of Steven Friedman, powerless people are depicted as using constitutional rights to protect their interests and demand influence. In so doing they succeeded in forcing powerful pharmaceutical firms to abandon a court action which would have prevented the government from importing cheaper AIDS-related medicines, and also compelling the government itself to adopt a policy change approving ‘a comprehensive AIDS treatment plan’, including distribution of antiretroviral medication to people living with the HIV virus.

Although these were achievements from ‘below’, they nevertheless drew, in their contestations, on the rights and power of constitutional democracy. It was precisely because formal rights were agreed on that it was possible to make these gains. These were achieved in the courts and in engagement with regulatory institutions, but also depended on popular backing beyond the courtroom.

As indicated, much disquiet has been expressed over police and SANDF excesses, which have allegedly led (at the time of writing, at the beginning of June 2020) to the death of some 12 or more people during the lockdown. Guy Lamb’s article on the SAPS becomes especially relevant to this context. He examines how the SAPS ‘have navigated the complexities of a transition to, and consolidation of, a democratic dispensation in a context characterised by high levels of violent crime over the past 25 years’.

His focus is on institutional reform, intended to build legitimacy and reduce crime. He places much weight on building ‘public trust’ in the police, and the consequences of its absence. This concern is common to other studies of transition from repressive to democratic rule.

But he notes that empirical studies on the police and police work indicate that there are typically low levels of public trust in the police in countries that are governed by repressive regimes or that have emerged from authoritarian rule, as well as in societies where there are high levels of inequality. He uses a table referring to a number of characteristics that are ‘trust-diminishing’, which appear to fit the patterns of venality, unreliability and brutality in the conduct of the SAPS.

In the earliest period of democracy, the SAPS Act (No. 68 of 1995) aimed at changing the character of the police and their relationship to society, breaking with the aggressive racist policing of apartheid. It also sought to build the police as a ‘service’, not a ‘force’, subject to civilian oversight, as required by the Constitution. According to Lamb, it was hoped that this would build professionalism, compassion and respect.

But continuing violence in the KwaZulu-Natal area after the transition to democratic rule, together with the integration of different police forces from the apartheid era, the Bantustans and the liberation forces, meant that the institutional culture that was inherited drew on an ‘aggressive masculinity’ and militaristic orientations. The outcome was an ‘acutely hierarchical and hawkish police organisation’. Government initially sought to demilitarise the SAPS, through the civilianisation of police uniforms and the ranking system, as well as through the phasing out of military equipment for policing purposes, but this has been eroded.

Along with civilianisation there had been emphasis on a multidisciplinary approach, with inputs from a range of government departments. That never took off, and it was ditched, with revised militarised strategies, especially during the 21st century. The militarised orientation of the police (and other security forces) is what is evident in the current lockdown.

Desiree Lewis writes on governmentality and South Africa’s edifice of gender and sexual rights. While recognising the pathbreaking South African constitutional and legal provisions on gender and sexualities, she argues that it is precisely this emphasis on rights that ‘ratifies a particular international understanding of “democracy”, one that is congruent with global neoliberal standards’, and that ‘actively reproduces the gendered, heteronormative, classist and racist status quo’. She questions whether these rights translate into actual gains.

Her criticism of the rights-based advances relates partly to their not being realised in practice, with inadequate state protection and continued attacks on women and queer bodies. At the same time, she advances a theoretical approach, drawing on Michel Foucault and Jasbir Puar, which is not dependent on the level of protection and realisation of these rights. The rights, she argues, primarily serve to accommodate this specific neoliberal notion of democracy, rendering the transformative qualities of feminism empty. It is argued that the country’s seemingly democratic arrangements for gender justice and sexual citizenship reproduce new forms of ‘governmentality, biopolitics and biopower’.

There is, she argues, a disjuncture between the formal provision of rights and actual practice, in the effects of provisions that are devoid of transformative impact. Her critique is not, however, based, as I understand it, mainly on the failure to have adequate systems to ensure compliance, stressed by some of the authors she cites. It rests primarily on the way the South African democratic state is ‘imagined’, based largely on its provision of rights around sexuality and gender, under neoliberal democracy. This, she argues, is set against states that are ‘on the periphery’, who are evaluated on the basis of the absence of these. In this way of framing rights in the ‘global imagining’, gender equality and sexual citizenship ‘currently serve as tropes for definitive freedoms and democracy’.

This results, she argues, in the recognition of gender equality and sexual citizenship ratifying a particular international understanding of ‘democracy’, which conforms with global ‘neoliberal standards’, which, instead of being transformative, actively reproduces the ‘gendered, heteronormative, classist and racist status quo’.

In the context of neoliberalism Lewis argues that feminism can become a tool of US imperialism, ‘showing that the rights for LGBTI people in countries such as Israel and the United States bolsters the unassailable status of these countries as defensible democracies’. By definition, and in some discourse, that emphasis can be set off against homophobic discourse and practices present in Arab and other Muslim countries, with whom the United States had gone to war. This is also mentioned in Melanie Judge’s contribution, in relation to ‘pinkwashing’.

When I first encountered the word ‘queer’ it was often used as a derogatory term. But Melanie Judge explains:

I use the term ‘queer’ to challenge the assumed coherences in the construct of ‘LGBTI’, and to be inclusive of multiple sexual and gendered experiences that share distinct but intersecting marginalisations. I note, too, that such categorisations are taken up and rejected, both personally and politically, in complex ways. All the terms for which we are made and which we might want to be are unstable and incomplete, and so I deploy them with necessary discomfort. I recognise, too, that queer subjectivity is itself discontinuous, contradictory and contingent. [Emphases mine]

Judge is concerned with unpacking what queerness means, in relation to laws empowering queers to rights under South African law and to how different categories of queer people take these up in a range of contexts. She is at pains to unpack the multiple character of being queer, namely that it is an identity, but that that identity is also a cultural phenomenon, mediated by a range of factors other than queerness, and that it is possible to live it in a range of ways depending on one’s race and class, among other influences. It depends on historical contingencies and possibilities, notably that provided by the Constitution, and then actions taken by others and various structures, which determine what is (im)possible for a person who is queer.

The article is self-consciously framed within a radical politics, navigating inequalities and difference, in order to be able to relate as equals and to combat the ever-present violence of othering. She takes the words of Audre Lorde as cautionary: ‘But we have no patterns for relating across human differences as equals’ (Lorde, 1984: 77). Yet she sees the South African Constitution as a historic attempt to ‘create new patterns for relating as equals’.

Queer political subjectivities, while affirmed by the Constitution, exist in the face of ‘intractable levels of violence’. She describes them as a ‘paradoxical terrain in which hierarchies of difference, and the inequalities that these signify, are both reinforced and resisted’.

The notion of the ‘rainbow nation’ was deployed in order to reconfigure the precarity of difference ‘in a new set of egalitarian and pluralist terms. For black queers, this rainbow was twofold, in that the first democratic vote marked both racial and sexual liberation, and was thus a “double victory”’. The deployment of this notion was hoped to repudiate a past where difference was the basis for establishing inequalities of race, class, gender, sexuality and ethnicity.

Despite this legal framework, acts of discrimination against LGBTI people, ‘at the intersection with other forms of discrimination’, have ‘emerged as a focal point for political resistances in the post-apartheid period’.

The gains of formal equality and the right to equal citizenship coexist with enduring inequalities. The victimisation and murder of queers is common, although not uniform, but racialised. While the right to inclusion was part of a rights-based response:

[s]tructural conditions of violent inequality, and everyday discrimination, have continued to generate gender, class and race inequalities – including within queer communities. These conditions have impacted both whether and how queers are able to access the benefits and protections of legal equality gains.

The new constitutional discourse sought to ‘unmoor difference from [the] apartheid categorical logic, in that it dares for difference to mean something else’. Much of Judge’s argument relies on unsettling previous ways of relating, in order to be fully human, a notion that lies at the heart of most understandings of emancipation.

This struggle for equality and to have one’s humanity equally respected leads to a tension between the need for sameness and difference, with some arguing that, in the regime of newly gained rights, difference has been sacrificed for sameness. But Judge contends that ‘the otherness of queerness remains inescapable’ and cannot draw fully on notions of equality before the law. What has been described as ‘(queer) equality jurisprudence’ affirms the plurality of difference in the terrains of both the sexual and the democratic.

The naturalisation of heterosexuality, from colonial discourse and practices to the present, remains a central feature of the painting of homosexuality and other non-conforming sexualities as deviant. This Judge sees as enabling femicide and ‘the normativity of gender violence’.

Whiteness coexists with heteromasculine entitlement in ensuring dominant sexual cultures. These rest on the exercise of power over subordinated, gendered bodies. This power is implicated in violence, which is integral to the ‘technologies of gender . . . and to a wider system that regulates compliance with strict gender and sexual codes’. The assertion of the ‘natural’ character of heterosexuality relies not simply on stigma but fear of this violence, punishing ‘non-heterosexual practices’.

The everyday dehumanisations of queers prepare the ground for more brutal violent attacks. Homophobia is not only grounded in assumptions about gender, but the way violence is enacted and experienced is conditioned by race and class. ‘This race–gender–sexual orientation–class mix shapes the prospects for queer harm (signifying injury and exclusion), on the one hand, and queer harmony (signifying well-being and inclusion), on the other hand’.

Harm against queers is not outside of ‘existing patterns of inclusion and exclusion within queer community contexts . . . The racial and class coordinates of this violence reveal a disproportionate impact on black queers’.

Asanda Ngoasheng considers the question of decolonising the curriculum at a university of technology located in Cape Town. Such processes are already controversial at conventional or established universities, but they are heightened by the relatively recent mergers of technikons and the elevation of these to the status of universities that combine previous emphases on what is required by industry with conventional academic expectations of high-level research, and now also by the awarding of master’s and doctoral degrees.

Ngoasheng uses the methodology of autoethnography, drawing on research and observation and also her own involvement in and insights into the processes aimed at decolonisation, alternating between using her own voice and a more detached tone, to describe many of the challenges.

The student body at the university comprises students from the poorer black and working-class communities, as well as some white students who are from a more privileged background. Some of the staff are also black and come from black working-class backgrounds.

As with all of these processes, the critique of the existing curriculum is a useful first step, but the really difficult part is to agree on and drive the process of revising curricula for various courses in the face of resistance from many staff who joined the institution when its orientation was developed in very different conditions. Some students also feel threatened by exercises that aim to make students more aware of privileges that some enjoy and the unequal access to opportunities that is the lot of others, in their home environments, history and the present.

The focus is on courses in architecture and the built environment, aiming to move away from teaching that derives from Northern paradigms that lead staff and students to be unaware of the continuing effects of spatial apartheid. In order to cultivate this consciousness and pave the way for a shift, staff and students who participate in the exercises do walking tours in the city, where the history of some well-known sites is described and analysed. This, it is hoped, will lead staff and students to see their surroundings differently and will influence how they work when they become practitioners.

The obstacles to having a socially relevant and just curriculum do not relate purely to those who are white or have been privileged: ‘Architecture in South Africa was initially a profession dominated by white males, but, even as women and students of all hues joined the profession’, the failure to address socio-economic issues remained:

Although the practitioners shared the same race and history as the poor communities they were building social housing developments for, they were producing socially irrelevant and ill-conceived developments, because they were produced from an education that failed to grapple with social justice issues.

One of the starkest examples of Eurocentric outcomes she sees as:

[t]he unequal application of the Garden City principle in the former whites-only suburb of Pinelands and the former blacks-only (africans-only) ³ township of Langa in the early 1900s . . . Although the two areas have the Garden City’s common trait of having a central square, the two communities are chalk and cheese, because one was built for blacks, and the other was built for whites.

As part of their orientation, students and staff are taken to see this themselves. Ngoasheng describes this in her own voice:

We then went to explore how a Garden City was developed and differentiated based on the race of the people it was built for. The former whites-only suburb Pinelands and the second black (african) township of Langa were both developed based on Ebenezer Howard’s concept of Garden Cities. The two residential areas are as different as night and day in terms of house size, street size and other physical features, but they both have the key feature of a Garden City, a town centre or central square. Students travelled through both areas and were able to compare the different ways [Howard’s] town planning vision was implemented and the deep inequality visible between the two areas.

The article sets out and challenges assumptions which are stuck in a ‘pedagogical and curriculum orientation time warp’. It illustrates how change is ‘political, difficult and emotionally taxing, and that it is best done in collaboration with different education stakeholders’.

Cedric Nunn, one of the country’s leading photographers, going back, at least, to the 1980s struggle against apartheid, provides a photographic essay driven by the pervasiveness of inequality 25 years after the transition to democracy. He sees his photographic work as aimed at ‘keeping the marginalised in view’, those whose economic situation has not changed significantly despite the onset of democracy. His photographs cover a wide range of topics in various parts of South Africa, illustrating the different memories and the present conditions of various sections of the population, depicting whites enjoying opulence in close geographical proximity to those who try to scrape together sustenance.

One wonders, given the plunge in national income and the massive rise in poverty and unemployment due to the lockdown, how much more marked this inequality will appear if similar photographic documentation were systematically undertaken now.

Nunn has interesting reflections on the challenges facing documentary photography, the impact that the economic downturn after the 2008 crash has had on photographers’ relationship with government, and also the impact on professional photography of democratising through the use of cameras on cell phones and other mobile devices:

Digitisation, and the role of computers in camera devices, in effect meant that the specialised nature of photography was eliminated, that photography itself became further democratised and open to growing numbers of people. This resulted in the pervasiveness of camera devices in every mobile phone, and hence in most people’s hands and pockets, which in itself is a good thing, but which is entirely harmful to the profession of photography, and to the professionals in particular.

The major challenges to professional photographers in South Africa are financial:

Along with these ground-shifting occurrences, of course, came the economic realities of rising costs and depreciating incomes. The costs of fuel and accommodation, which are essential for the on-the-ground and in-the-field photographer, have become untenable. This has also been the case with a plethora of other associated costs. In the scheme of neoliberal economics, it was ‘No pay, no play’, and, of course, in this scenario the only narrative to hold the day was that which the corporate and commercial sectors paid for and resourced.

As is evident, Nunn, in using visuality, returns to understanding themes of identities, marginalisations and inequalities that recur in a range of contexts throughout the present issue. In summary, this special issue of the journal marks and recognises that the onset of democracy created possibilities for remedying and transforming the oppressions of apartheid and put in place mechanisms to enable an ever-enriched freedom and transformation. At the same time, the tone is not celebratory but analytical, and in this context, a range of problems are interrogated and addressed.

That these possibilities have not been realised in many respects is not recorded with cynicism. If anything, the authors all write, albeit from different perspectives, with a commitment to making freedom work and realising a humanistic and emancipatory vision for South Africa.