Picture: Oupa Mokoena/African News Agency(ANA)
Picture: Oupa Mokoena/African News Agency(ANA)

Dealing with looting - What happens after the spree?

By Time of article published Jul 17, 2021

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By Zelna Jansen

South Africa’s high unemployment rate, poverty, social economic exclusion, spatial challenges marginalising the poor, corruption, racial divisions, has finally caught up with us. These factors, despite many of them being inherited from the previous apartheid regime, have been exacerbated by political representatives that have lost sight of the plight of the poor.

Once in office, political office bearers and public officials can easily become distracted by various lobbyists and interest groups that compete to hold their attention. One can speculate on many methods of how their attention is maintained, however, it is not relevant for this article now.

The unlawful protests, vandalism and looting of shops and other illegal activities which transpired over the weekend and are persisting, shows that the have nots are finally having their say. Unfortunately, it seems, that they do not care how raising their voice is affecting the economy and everyone else. Why should they care about a system that shows them no mercy leaving them hungry or a Constitution they perceive do not benefit them?

The protests were ushered in by events of the #FreeZuma movement and aggravated by criminal elements. It is also possible that an invisible hand strategising and driving these unlawful protests and looting are at play.

However, the dissatisfaction of the poor, has been simmering for some time. Without plausible solutions, such as creating jobs and measures to include them in the economy or at least include them in the conversations about improving their lives, this was bound to happen.

Ordinary citizens in affected areas have now taken up arms to protect themselves and their property. Given the narrative echoed around expropriation of land, it is likely that protesters may intend to move from looting shops to taking land. Protecting your person and property can be lawfully justified through necessity. The deep underlying racial divisions and perceptions will inevitably lead to eerie outcomes.

The president has deployed 2 500 soldiers of the Southern African National Defence Force (SANDF) in Gauteng and KwaZulu-Natal (KZN) to support the South African Police Services (SAPS).

Some have argued that deploying the SANDF is not a good move as soldiers are trained and socialised to fight and their default position is aggression. This may seem harsh, however, as things are now, it seems like the lesser evil.

Despite, the deployment of the SANDF, the unlawful protest, vandalism and looting continues. Perhaps, more soldiers must be deployed in these areas? A state of emergency is on the cards for KZN and Gauteng. Human rights violations may happen.

Hundreds of people have been arrested in KZN and Gauteng. One must distinguish between the instigators, opportunistic criminals, and those looting. Generally, the penalty for looting is same as that of stealing. How the looting occurred will be considered. If the accused broke a door to enter, then additional charges of breaking and entering can be added. If the accused was an instigator, then additional charges of conspiracy to commit a crime can be added.

Crimes of conspiracy usually feature in statutory acts against the state. These are terrorism and sabotage. If it can be proved that an accused instigated the unlawful protest, vandalism and looting to coerce government into a particular action, such as releasing the former president, the charge of high treason can be added. In the latter scenarios, it is highly likely that factions within the security cluster will become involved.

The sentencing could vary based on the item or items that the accused was found to be in possession of. For example, if an accused was found with food items, unemployed and poor, he or she will receive a lighter sentence, possibly a fine as opposed to an accused that was found with a television, gainfully employed, instigator or conspirator.

There is also the question of evidence. In the circumstances presently, SAPS appears to be overwhelmed. A question to consider is whether there is evidence and whether it was recorded correctly? Another question to consider, is whether the police official will be able to attend court to give evidence in a trial?

Most concerning is how and where will arrested detainees be kept? South African prisons and holding cells are overcrowded. Concerns have been raised about obvious challenges for social distancing.

These are extraordinary circumstances, and it is possible that as many looters are youth, women and unemployed and the likelihood that evidence may be scant, an overwhelmed SAPS, may release detainees on a warning. Section 57 of the Criminal Procedure Act 51 of 1977, also allows a police officer to release a detainee on bail for theft, where the value of the stolen goods is less than R2 500.

It seems that the unlawful protests, vandalism, and looting is out of control and may take some time to come to an end. However, looting will eventually have to stop when there is nothing left to loot. Then another crisis will follow. There will be no food as supply networks collapse. People will not be able to access their social grants. Poverty will be further worsened.

Perhaps, then this will be an opportunity to talk to the poor. Not only in the form of a commission of inquiry, but a genuine effort to consult, hear and take the poor on board on government policies, projects, and initiatives.

Zelna Jansen is a lawyer. She is chief executive of the Zelna Jansen Consultancy.

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