PoLAR: Political and Legal Anthropology Review

Keeping the Peace: A Tale of Murder and Morality in Postapartheid South Africa

Authors


Abstract

This article examines a South African murder trial known as the Reeds Murders as a site for analyzing discourses of crime, race, and citizenship within the context of postapartheid South Africa. I show how concerns over public morality are represented within the juridical field, as well as how the defendants in this case deploy collective memories of state violence to challenge the court's vision of postapartheid justice. I conclude by exploring both how public fears of African youth emerge in the sentencing of the accused, and also how those fears map onto the contours of a postapartheid moral geography.

In April 2001, Agatha Tapela and her cousin, Matenta Kalenga, left Cape Town to oversee the renovation of Tapela's Johannesburg property. The next day, they hired Paul and John Jacobs, also of Cape Town, to refurbish the house. On April 8, 2001, all four visited the residence to assess its conditions. Upon arriving, they found that the former occupants, whose lease had expired in March, were still residing there (Venter 2003). That day, they gave the squatters 24 hours to move out. The next morning, the four Capetonians were found shot in the head, their bodies sprawled out near Agatha Tapela's “German luxury multi-purpose vehicle” (Helfrich and Govender 2001).

At first, the police were “baffled by the motive for the killings, as no personal belongings or valuables were missing” from the scene. Within two days, though, they charged the former tenants with murder (Schronen 2001). The men—Thuso Tshukudu, Zakhele Michael Mseleko, Tshepo Khazi, Tutu Billy-Boy Radebe, and John Sibiya—were brought to the Brixton Murder and Robbery Unit. By mid-April, reports surfaced that Radebe, Sibiya, and Mseleko had been assaulted by their arresting officers (Mofokeng 2003). Allegations of abuse and torture continued throughout the trial (Helfrich and Govender 2001).

A week after their arrest, four of the accused—Tshukudu, Sibiya, Radebe, and Mseleko—attempted to escape. The escape plan was foiled, and during the botched attempt Mseleko shot and killed himself “rather than stand trial” (Mofokeng 2003). Mseleko's death delayed court proceedings for several months, though the case was finally tried in the Pretoria High Court in October 2003. Despite pleading not guilty to 15 charges, the accused were convicted on four charges of murder, five charges of abduction, and a number of minor offenses. During the sentencing phase, presiding Judge George Webster asked for a probation officer's report on the men's biographical background, so that he could “know each of you before I sentence you” (Venter 2003b). When Thuso Tshukudu, John Sibiya, Terry Khazi, and Tutu Radebe were sentenced on February 20, 2004, Judge Webster used these personal biographies to argue against mitigating circumstances (The State vs. Thuso Tshukudu. Pretoria High Court 2004:98). He described the murderers as “merciless, inhuman, cruel, and brutal” (Tshukudu 2004:105). Newspaper reports on the case noted that the accused “remained unremorseful”(SAPA 2001).

The “Reeds Murders,” as the crime became known in the media, provides a case study for analyzing the role of legal discourse and criminal prosecution in the production of moral order. This court case is particularly useful for thinking about representations of moral order because it invoked concerns over the kinds of racialized and gendered personhood that are seen to be threatening the South African state in the postapartheid era. As I shall argue, this case is as much about the prosecution of black, male youth from the Soweto township, as it is about the prosecution of generic criminal activity. I have chosen this case not because I believe it embodies all aspects of postapartheid legal processes, but because it crystallizes a set of diffuse concerns over public morality that are pervasive in contemporary South Africa.

Further, I argue that the highly visible prosecution of the Reeds Murders did more than simply instigate a forum for a wider South African public to contest moral claims in the idiom of the law; it also provided crucial means for the state to assert its sovereignty over people and things. I analyze this public display of state sovereignty in relation to Foucault's (1977) genealogical account of disciplinary power in modernity. In this case, I show how the new South African state's prosecution of crime has become a kind of “ceremonial event,” through which “a momentarily injured sovereignty is reconstituted … by manifesting it at its most spectacular” (Foucault 1977:48). While I depart from the aspect of Foucault's narrative which suggests that, “our society is one not of spectacle, but of surveillance,” I continue to draw from his sustained insight on how the representational field of the law articulates public morality (Foucault 1977:217).

In tracking the competing discourses of public morality generated by the Reeds Murders trial, I argue that the case is uniquely representative of contemporary South African politics for three related reasons. First, as a comparatively rare example of successful criminal prosecution,1 the case enabled the South African state to demonstrate its ability to apprehend wrongdoers. Second, as a case laden with gendered, racialized, and class-based representations of postapartheid justice, the Reeds Murders can be understood as a microcosm of a broader South African social order. Third, because the Reeds Murders was widely commented on in the media, the case opened a forum for South Africans to publicly deliberate on the perceived threat of crime within the neoliberal state.2

Close examination of the moral claims made by the judge and the accused reveals how public morality is constructed and contested in the courtroom. Through an analysis of the discourses about crime and violence deployed in this case, I show how the Reeds Murders case became iconic of the fears and hopes that characterize the postapartheid era.

The Postapartheid Context: From Liberation to Liberalization

Changing social and economic conditions in postapartheid South Africa provide an important context for this particular case. Significantly, in the new South Africa, crime has been singled out as a key governance problem. Discourses on crime are often cited in juxtaposition to broader conversations on the waning of state sovereignty and state legitimacy. This renewed “criminal obsession” (Comaroff and Comaroff 2006a) first emerged as South Africa was transitioning to democratic rule. Here, I begin with an analysis of the political and economic conditions that have made crime an object of public concern.

With the rising power of the African National Congress (ANC) in 1990, the election of Nelson Mandela in 1994, and the commencement of Truth Commission hearings in 1996, the victory of the anti-apartheid movement was hailed as a “triumph over evil” throughout the early 1990s (Adam, van Zyl Slabbert, and Moodley 1997). Those who had fought in the resistance struggle expected the new, democratic South African state to live up to the ideals that had galvanized the liberation movement, including that of non-racial economic egalitarianism. No one initially expected the new government to adopt economic austerity measures; instead, the dispossessed expected, for the first time, “to enter the workplace as free individuals” (Comaroff and Comaroff 2004:810).

Yet at the time the ANC came to power, it faced “high rates of unemployment; abject poverty among more than 50 percent of the population; sharp inequalities in the distribution of income, property, and opportunities; and high levels of crime and violence” (Terreblanche 2002:25). A set of macroeconomic policies was proposed to stimulate economic growth, liberalize borders, and facilitate foreign direct investment. In 1994, the ANC responded to the growing economic crisis by releasing its Reconstruction and Development Programme (RDP), which albeit with significant exceptions, aimed to create a “globally oriented and first-world capitalist enclave” that would stimulate growth and employment (Terreblanche 2002:438).

As with many other countries implementing structural adjustment policies, the hope did not materialize. Even by conservative estimates, black unemployment increased 9 percent between 1995 and 2001, while growth remained stagnant (Terreblanche 2002:31). For many South Africans, the long-sought political enfranchisement coincided with their continued economic disenfranchisement (Comaroff and Comaroff 2000). Neoliberal reforms, which are systematically challenging the viability of the nation-state, have thus been symbolically and materially associated with the current crime wave (Steinberg 2001). It is in this context that reflections on violence and morality, as embodied in the sentencing of the accused, have simultaneously become reflections on the state of the nation.

Accordingly, in the new South Africa, crime emerges as a legitimate “means of production,” at the same time as it indexes fears and uncertainties about the moral status of postapartheid South Africa. Opinion polls on this matter frequently cite “crime and lawlessness” as the top concern of all South Africans, and a majority of respondents agree that “[h]igh levels of crime lead to death, loss and destruction, feelings of despair and insecurity, emigration and the loss of badly needed skills, vigilantism and a loss of trust in the institutions of government and the constitution” (Schönteich 2002).

In the public imaginary, the state appears to be weakening at precisely the moment that state institutions, such as the police and the judiciary, are most needed to safeguard the social order. In this context, many South Africans worry that the neoliberal postapartheid state is too weak and ineffective to make “postapartheid justice” a reality. For instance, according to the South African National Prosecution Authority, the prosecution of criminal cases is often deferred indefinitely due to the lack of available resources for prosecuting crimes.3 Further, only 8 percent of all cases ever reach the High Courts, where the Reeds Murders case was finally tried (Schönteich 2002). Concurrent with public anxiety growing over the current “crime wave,” the battle against crime has become an important site for the state to perform its regulatory powers against the body of the criminal (Comaroff and Comaroff 2006a; Siegel 1998; Steinberg 2001).

The Reeds Murders thus represents a comparatively exceptional case. Further, not only was it unusual in being tried fairly quickly and efficiently, but it was also an extraordinary instance of high-level prosecution for a violent crime. Typically, only the most serious offenses are tried by state advocates in the High Courts, while the majority of “everyday” violent crimes are prosecuted in the lower magistrate or regional courts (Schönteich 2002). More so, where a crime is prosecuted makes a significant difference for the outcome of the trial, for under current legislation, regional courts can impose no more than 15 years of imprisonment, while High Courts have no sentencing limits. Hence, the fact that the Reeds Murders case was tried in the Pretoria High Court meant that the accused could—and indeed, would—be given life sentences.

The reason for trying the Reeds Murders in the Pretoria High Court is not immediately evident, but at least one important factor was its classification as a “social fabric crime.” The term social fabric crime was developed by the South African Police Service to describe crimes occurring either within a family or between acquaintances (Fanaroff 2004). These so-called social fabric crimes are perceived as particularly difficult for police to solve, in part because they invoke interpersonal relations—in this case, the relationship between tenants and lease-holders. Further, “social fabric crimes” are imagined to originate from the conditions of township life and urban poverty and to be frequently associated with unemployed, young black males (Fanaroff 2004).

In what follows, I argue that characterizations of township poverty and masculinity entailed in the classification of “social fabric crimes” undergird the prosecution of the Reeds Murders case. Thus, this case indexes myriad concerns over the renting of South Africa's “social fabric,” as well as the state's performative attempt to showcase the trial as an example of a successful criminal prosecution. Here, the courtroom becomes a site for struggling with the fears and anxieties wrought by crime, as well as for dialogue about the jural model of liberal citizenship.

The Verdict: Producing Laboring, Liberal Subjects through the Courtroom

The jural model invoked in this case has a long history in South Africa. Yet in the postapartheid era, it has become far more salient, as “neoliberal capitalism has intensified the grounding of citizenship in the jural” (Comaroff and Comaroff 2003a:457). Particularly in multicultural nation-states, the ostensibly neutral language of legality is increasingly relied upon to mediate social differences. In this sense, law operates as a universal solvent vested with the capacity for making incommensurable social differences formally and jurally equivalent.

This jural model is particularly fraught in South Africa, where the majority of judges serving on the bench since the end of apartheid are still white males.4 Despite the lack of diversity on the bench, the majority of crimes adjudicated reflect the country's broader demographics, where 90 percent of resident South Africans are not white. The importance of the jural model becomes especially clear in the case of the Reeds Murders, over which Judge Webster presided for nearly 2 years. Though he is a white male who was appointed to the bench during the apartheid era, he was asked to single-handedly adjudicate between parties who came from strikingly different racial and class backgrounds. We might be tempted to read his treatment of the accused as symptomatic of the racial logic of the courts.5 However, the Reeds Murders trial resists such a straightforward interpretation, especially since there is no discussion of race in Judge Webster's sentencing of the accused. Rather, he draws heavily on a legal-liberal discourse that frames the defendants as “abstract persons with abstract rights” (MacKinnon 1989:60).

By drawing on this tradition of legal liberalism, the judge is able to posit a vision for postapartheid justice that depends on citizens using pure moral will to triumph against odds and temptation. Such a vision, of course, is invested in the idea of a particular kind of citizen-subject. The subject invoked here is the liberal, laboring subject of modernity: in other words, the autonomous rights-bearing subject who exhibits the qualities and capacities—such as rationality, free will, and intellect—deemed necessary to ensure formal equality; who produces and consumes for the nation-state; who posses an equal moral weight in comparison to all other subjects and can therefore be held responsible for his or her own actions.

As a further consequence of this legal-liberal logic, the judge comes to occupy the position of a neutral arbiter among conflicting parties and claims. Particularly, in the sentencing phase of the trial, Judge Webster employs his position as the self-appointed gatekeeper of legal-liberal culture to make an example of the accused. He begins by locating the motive for the Reeds Murders in their “psychosocial circumstances” (Tshukudu 2004:98). And, by focusing on the personal backgrounds of the accused, he is able to situate the origins of crime and criminality within the “criminal mind” (Foucault 1977). In his rendering of justice, the criminal act is made isomorphic with criminal identity.

In this way, Judge Webster grants the accused an individual biography of crime, while reducing the historical genealogy of that crime to the jural domain: “legal meaning is … attached to individual acts and legal explanation is correspondingly biographical and moral rather than sociological and contextualizing” (Goodrich 1986:204). In other words, the individualization of crime personalizes violence in an attempt to subsume context and history into jural rationality. Such an analytic move allows “the state to represent itself as the custodian of civility against disorder—and, therefore, as mandated to conjure moral community” (Comaroff and Comaroff 2003a:457). I will now delineate the representations of the accused in the courtroom, and then analyze how these representations are used to make a statement about morality and social order in postapartheid South Africa.

The Accused: Imagining Criminality

The task of researching the individual biographies of the accused is delegated to Mrs. Malinga, a registered social worker and probation officer (Tshukudu 2004:99). Mrs. Malinga's report explicitly situates the life histories of the accused in relation to the crime. The first accused, Thuso Tshukudu, is described by Mrs. Malinga as coming from a “stable and caring family” (Tshukudu 2004:99). Having attained a Standard 9 level of education,6 the accused left school to enter the music business as a disk jockey. At the time of his arrest, he made a living by selling CDs from a stand outside of Baragwanath Hospital in Soweto (Tshukudu 2004:100). During the trial, Tshukudu testified on his own behalf, arguing that he was assaulted by the arresting officers, tortured by the investigating officers, and coerced into making a false confession (Tshukudu 2004:19–20). Judge Webster dismisses Tshukudu's claims, and sentences him to life in prison without mitigating circumstances.

The individual biography of the second accused, John Sibiya, poses more difficulty for Judge Webster. Sibiya had left school after attaining a Standard 4 level of education. The report indicates that his upbringing had been “rather traumatic and unstable” (Tshukudu 2004:100). Sibiya's parents divorced at a young age, leaving him and his brother to be raised by their father in Soweto. At the age of seven, the accused and his brother were removed from their father's care and placed in a children's home. The Sibiya brothers were moved from one foster residence to the next, until they finally ran away from the social services agency monitoring their care (Tshukudu 2004:101). After some time, they located their biological mother. The reuniting of the family, according to both Mrs. Malinga and Judge Webster, was a “ray of hope” for the boys (Tshukudu 2004:101). Unfortunately, the mother was in a relationship with a man who abused alcohol. As a result, the Sibiya brothers were unable to continue living with their mother and her boyfriend, and soon ran off to become “street children” (Tshukudu 2004:101).7 On the street, they were arrested and again taken to a children's home. This “cycle of instability” continued until 1995, when John Sibiya obtained employment at a garage (Tshukudu 2004:101). Judge Webster praises the accused for having the “presence of mind to find employment and to remain in employment for about 5 years” (Tshukudu 2004:109). Here, we begin to see how, for Judge Webster, stability is linked with productivity; once the accused has a job, his past is forgiven and his worth is redeemed through labor. Accordingly, when the accused is laid off in 2000, his status as a productive citizen is revoked by the judge.

A similar narrative of employment, productivity, and the rights of citizenship is found in the report on the third accused, Terry Tshepo Khazi. Khazi is the fourth child in a family of five, who lost their mother in 1995, and their father shortly thereafter (Tshukudu 2004:102). The death of the parents “resulted in hardship, particularly financially, to the family, forcing each member of the family to fend for himself or herself” (Tshukudu 2004:102). While Terry achieved a Standard 9 level of education, he failed his matric8 and dropped out of school (Tshukudu 2004:102). It was 2 years before he could find employment, and when he finally did, he was working for subpar wages at a store in Germiston. He was employed at the store until 2001, when he left in order to try and become a taxi driver (Tshukudu 2004:102). At the time of his arrest Terry was still unemployed. Further complicating his story, Khazi tested positive for HIV while in prison. In his testimony, Khazi states that, “no treatment for AIDS is provided for and is [sic] available at the prison” (Tshukudu 2004:102). Despite the palpable difficulties of having HIV-positive inmates sentenced to life in a facility that does not provide treatment, Judge Webster rationalizes the sentence by arguing that: “he would not be able to afford medication if he were to be released anyways,” and therefore remains fit for imprisonment (Tshukudu 2004:109). Khazi's status as an unemployed citizen becomes the grounds for his incarceration.

The final accused, Tutu Billy-Boy Radebe, is portrayed somewhat differently in the court, especially in relation to the others. He is described as coming from a “big and diverse family background” (Tshukudu 2004:104). Mrs. Malinga testifies that “when he grew up he loved attending school and was a regular churchgoer” (Tshukudu 2004:104). After attaining a Standard 9 level of education, Radebe left school to work as a salesman. He remained employed in that capacity for 6 years, until he quit to take over his family's car repair business (Tshukudu 2004:103). As the father of three children, all of whom are dependent on him for support, Radebe is the “sole breadwinner of the family” (Tshukudu 2004:103). As a laboring subject, he is held in high esteem; according to court records, “he is a loving son, and a loved partner by his girlfriend of 7 years' standing” (Tshukudu 2004:103). Following his arrest, the family comes under financial strain. Yet, the “intrinsic cruelty” of the crime outweighs any mitigating circumstances. He too is sentenced to life in prison, though notably Judge Webster seems least decisive when rendering Radebe's sentence.

For Judge Webster, these individual biographies represent the “lot of people such as the accused,” who have experienced the hardships of township life, the problem of unemployment, and the capacity to be a moral citizen (Tshukudu 2004: 107–111). Narrations about the psycho-social backgrounds of the accused are juxtaposed to representations of violence, and the crime scene is linked back to the particular psychodynamics of the criminal mind. At the same time, criminal acts are read as markers of certain types of identity formations. In this way, the court is able to momentarily acknowledge the historical and social structures that influence crime and criminality in the new South Africa, only, in the end, to reduce the importance of those structures to the jural model and the innate moral will of the rights-bearing subject.

The Judge: Representations of Moral Order in the Court

Judge Webster's sentence renders a verdict in this particular case, but it also grapples with representations of violence in postapartheid South Africa. Thus, the violence of the crime scene is recalled in graphic terms. Judge Webster recounts how the deceased were held in captivity for some time and must have known what “horrendous fate” awaited them. Elaborating from the state's evidence, he concludes that:

Their [the deceased's '] anguish must have been protracted. They were subjected to inhuman and degrading treatment. The positions of their bodies, as shown in the photo album, suggest and indicate that they must have struggled at the hour of execution. One of the victims was found lying outside the front passenger door, her hands still tied and bound behind her back. The killers could not have had the remotest human kindness at all (Tshukudu 2004:105, emphasis added)

After reducing the complexities of criminal behavior to “intrinsic cruelty and brutality,” Judge Webster attempts to understand the motives behind the crime (Tshukudu 2004:105). However, in determining that the accused suffer from “intrinsic cruelty,” he has already diagnosed the underlying motive. As far as the court is concerned, these are not the type of criminals whose moral will can be recuperated. Rather, these are conscienceless citizen-subjects who are seen as an inexorable threat to law and order.

It is therefore no surprise when Judge Webster concludes that his attempt to understand “what could have motivated the accused to resort to so drastic a measure in order to rob the victims of so trivial possessions,” was “in vain” (Tshukudu 2004:106). Of particular concern for him is that the deceased's car, a Charon minibus, was abandoned at the scene. All that was taken from the deceased were their bankcards, jewelry, and personal possessions. While he can understand, even sympathize, with the “many people [who] succumb to the lure of crime in order to have money to live,” he cannot understand a crime that is “wanton” (Tshukudu 2004:110, 106). Insofar as crime for money can be recognized in the jural model of individual rationality, violence, as a tool for accumulating wealth, has a morally comprehensible logic. In the absence of that logic, crime becomes irrational, even nihilistic (Segal, Pelo, and Rampa 1999; Steinberg 2001). For Judge Webster, it is the very incomprehensibility of the contemporary moment of public (dis)order, the terror of the “morality of indifference,” that proves to be most shocking.

Unable to explain the accused within his model of individual rationality, Judge Webster is forced to refer to a separate incident involving several of the accused. A few days prior to the murder, a man named Mr. Khoza was robbed of his car. On the record, Judge Webster implicates three of the accused in the robbery. Since one of the accused allegedly said in a statement to the court that “the vehicle was to be sold to a certain person and taken across the border,” Judge Webster concludes that the accused were part of a crime syndicate that circulated stolen vehicles throughout southern Africa (Tshukudu 2004:106). Despite the fact that only circumstantial evidence exists to support this claim, an ordered network of criminal actors is posited as the source of crime.

Having contained the fears and anxieties associated with this particular crime by locating it within a syndicate, Judge Webster goes on to lament the “violence that has enveloped our country for a long period of time” (Tshukudu 2004:107). According to him, the violence has been so unmanageable that “the democratically elected government of this country was obliged in 1997 to pass an Act of Parliament to try and curb the spiraling violence” (Tshukudu 2004:107). The Act of 1997, in the “interests of society,” (a phrase cited often by Judge Webster throughout the sentencing) sets mandatory minimum sentences for violent crimes.

In representing himself as an agent and advocate of the “interests of society,” Judge Webster positions himself as a neutral, objective, overseer of the people's welfare. Of course, the “interests of society,” parsed out in the idiom of Common Law, is really an “elaboration and affirmation of the values of legal community and legal order—the text is as much a sermon and an exhortation as it is in any strict sense an exercise of legal summation” (Ericson, Baranek, and Chan 1991:7). In this case, the explicit plea in the judge's sermon for rationality, civility, and an ordered (if fragile) peace, produces a particular image of a social order that is maintained by liberal, laboring subjects who have the capacity for moral will.

Such an image enables Judge Webster to use the spectacle of courtroom drama to create the semblance of a coherent moral universe in several ways. His attempt to construct an imagined moral community begins with a sociological argument about the possibilities available to particular sectors of South African societies:

They [the accused] were born in a township. I am aware and sensitive to the fact that some of the more sophisticated qualities and (inaudible) that are found in society and to which most if not all people aspire to, are lacking in varying degree in the townships. I am aware that there is great unemployment in the outside world. I am aware that many people are tempted and succumb to crimes such as theft, housebreakings and bag snatchings in order to have some money in order to live. I know that there are some among our society who do not have the acumen nor the ability to conceive of ideas and execute such ideas in order to earn them an income to support themselves and their dependents. I am aware that such people are tempted to committing crime. [Tshukudu 2004:110]

Township youth are relegated to a “culture of poverty”: without a social scaffolding, symbolic and material goals cannot be attained. Excluded from the national economy, some youth are said to revert to income-generating criminal activity. According to the logic of this framework: (1) one has to have “acumen” to successfully integrate into the neoliberal economy; yet (2) people from the townships have been unsuccessful at gaining full-waged citizenship in the postapartheid state; and (3) consequently people from townships must not have the acumen to succeed.

This logic evades the underlying questions posed by the neoliberal state: why have the borders of exclusion and inclusion been drawn as they have? Focusing on the “culture of poverty” in the townships obscures the contradictions inherent in neoliberal capitalism, especially as it is enacted in postcolonial and posttotalitarian states. Furthermore, the surface psychologism employed to understand the “essential nature” of people who come from “lots such as the accused” creates a self-fulfilling prophecy, whereby township youth are overdetermined to engage in criminal activity, and therefore any criminal act can be understood as originating from the conditions of township life.

The naturalization and otherization of township life and township (criminal) youth provides the ideological justification for the state's intervention into the lives of people “such as the accused” (Tshukudu 2004:107–111). Having elaborated on the immediate aspects of individual and communal life in the townships that constitute a perceived material limit to the realm of possibilities, Judge Webster refers to people who engage in crime for income as “victims,” who have succumbed to the “temptations” proffered by illegal economic activity (Tshukudu 2004:110). Since crime for income has a moral logic which can be comprehended in the world of neoliberal capitalism, Judge Webster argues that the role of the state, when crime is committed with the intention of accumulating wealth, is “basically to assist, to reform those people, to rehabilitate such people and to impart skills as best as is humanly possible to such persons” (Tshukudu 2004:110). However, the accused in this particular case did not act in their own economic self-interest; if anything, the court would argue, they acted on an impulse toward cruelty and nihilism. The accused are the personification of a nihilistic violence, which cannot be tamed, and hence the court insists that their seemingly immoral logic places them outside of the state's reforming powers.

For Judge Webster, the boundaries of moral and rational logic coincide with the boundaries of the civilized and the uncivilized. The act of publicly condemning the accused creates a symbolic moral topography onto which different sectors of South African society are mapped. Judge Webster explains what is possible, what is acceptable, and what is civilized among township families, by concluding:

Many a family in a township has not only brought up children but has educated doctors, lawyers, and people of various professions by simply making and selling “vetkoeks.”9 I mention these … in an effort to underline and underscore the fact that in whatever difficulties that the accused may have been, financial or otherwise, that their resorting to the killings of people, the kidnappings and the robberies that they have been convicted of, are crimes which are just not acceptable. They are not acceptable in civilized society, they are not acceptable in the poorest, even the most depressed and the most private sectors of society, they are just not acceptable.[Tshukudu 2004:110, emphasis added]

Judge Webster's discourse about families that sustain themselves through “making and selling vetkoeks” reinforces the distinction between crime-for-income and crime-for-naught. Having explained that poor people who steal have wronged the state but are not outside of the state, Judge Webster now clarifies that poor people who kill without motive are “not acceptable in civilized society” (Tshukudu 2004:110). The discourse in the court about what is “civilized”—a discourse which has a long genealogy within the history of colonialism and apartheid—is being reconfigured here to naturalize the boundaries of moral and immoral in postapartheid South Africa.

The Accused Respond to the Court: Alternative Representations of Moral Order

In Judge Webster's attempt to understand criminal violence through the biography of the criminal, he struggles with the legacy of violence called forth by this particular case. Ultimately, he reduces the social facts surrounding the case to a legal-liberal logic, and argues against looking to the past as an explanation for contemporary violence. The accused, in turn, contest Judge Webster's legal-liberal logic by locating their individual experiences within a collective biography of violence that is grounded in memories of state brutality during apartheid. Starting with their arraignment, the accused testify that they were tortured by the police officers at the Brixton Murder and Robbery Division. Their claims prompt a “trial-within-a-trial.”

In the South African legal tradition, a trial-within-a-trial is held whenever the admissibility of a confession is questioned. The practice was initiated after the landmark ruling of State v. De Vries (1989), where the courts ruled that it is “essential that the issue of voluntariness [of a confession] should be kept clearly distinct from the issue of guilt,” by limiting the inquiry to a trial-within-a-trial. Insofar as the trial-within-a-trial then shifts the focus of the court to the actions of state officials, the nature of the proceeding is distinct from other legal processes. For instance, during the trial-within-a-trial, the accused can go into the witness box to testify about the conditions under which they confessed, without being subject to general cross-examination regarding the criminal case in question. This offers the accused a unique opportunity to testify solely about the violence incurred during their arrest, interrogation, and incarceration.

Throughout the trial-within-a-trial, as in earlier court proceedings, the accused argued that their testimonies were coerced through violent means and that the confessional documents they signed were written in Afrikaans, a language they neither read nor speak. In the end, Judge Webster denies their claims on two bases. First, he suggests that their testimony was, at times, contradictory; and second, he argues that there is no rational reason to assume that police officers would risk losing their jobs by assaulting arrestees for the sake of one murder case.10

In the end, even though the judge denies any wrongdoing, the mediation of the trial-within-a-trial still forces the court to acknowledge the accused's “rights of recountability,” or their right to circulate their memories in the public sphere (Werbner 1998). Therefore, it is important to consider how memories of past violence enter the courtroom, how the Truth and Reconciliation Commission (TRC) standardized the way those memories could be narrated, and how the accused draw on public memory in order to make claims on the state.

The Testimonies

In order to examine how the narrative genre cultivated in the TRC enters the accused's testimony, it is important to consider the mode in which the accused testify. The following is a substantive summary of the statements submitted by two of the accused during the trial-within-a-trial.11

Accused #1: Thuso Tshukudu

Tshukudu testified that he was at home on 10 April 2001, when three stout police officers demanded access to the house. Upon entering, the policemen ordered Tshukudu to lie down, tying his hands behind his back with a rope. Tshukudu requested a call to a lawyer, but the policemen responded with a “profanity with sexual connotations.” Two of the arresting officers were said to embark on a “continuous sadistic campaign of terrorizing, torturing, beating [and] kicking.” Afterwards, “a plastic bag was put over his head and it was squeezed and he was suffocated.” Following further questioning at the house, Tshukudu was taken to the Brixton police station. In the interrogation room, “there was an armchair with armrests … on the armrests were rubber-like straps, which were used to tie down a person's arm.” One of the policemen “struck him on his right knee with a rifle but, dislocating his kneecap.” This continued for several hours, until Tshukudu was finally presented with “certain documents,” which had been written in Afrikaans. He was told to the sign the documents, which he did, and in so doing he unwittingly confessed to the murders.

Accused #2: John Sibiya

Sibiya also testified that the Brixton police force had assaulted him throughout the arrest and interrogation period. He recalled being taken to a room on the second floor of the Brixton police station, where he was made to sit protractedly on the ground. Then, Sibiya was “undressed, a car battery was taken out of the bag and attached to his private parts, and he was shocked continuously with some contraption on his thigh.” At some point, one officer placed a “plastic bag over his head and he was shocked further and told that if he was ready to talk about the weapons [used in the murders] he could slap the floor.” Sibiya maintained that he sustained injuries to the “left side of the ribs,” and along his face. He stated that no interpreter was present and that his constitutional rights were never explained. After prolonged torture, he was made to sign a confession, the details of which were never explained to him.

The Genesis of TRC-Style Testimonies

I focus here on the testimonial-narrative form of the testimony, rather than on questions of its truth or its instrumental role in legal strategizing. Given the constraints of the trial-within-a-trial, I argue that if the accused are to be recognized as credible witnesses, the narrative genre they employ must carry institutional legitimacy. The Truth Commission genre of narration is particularly useful in this regard, especially in South Africa, where the TRC explicitly sought to fix collective memories of state violence and draw the contours for a new moral geography.

To understand how this narrative form came into being, it is important to note that the Commission's goal of institutionalizing collective memory led to an overall standardization of the testimonial-narrative genre. The standard narrative came to require a “coherent chronology, a clear relation between component parts,” and “a climax phrased in terms of the experience of a ‘gross violation of human rights’” (Ross 2003:328). In this way, complex testimonies were transformed into simplified “stories of suffering.” Yet, such a standardization of the narrative form also opened up new racialized and gendered subject positions for TRC testifiers, and eventually for a broader South African public. Accordingly, the TRC testimonial-narrative form has become a means for dialoguing with the nation-state without eliding the broader sociohistorical context of violence.

The particular way in which narratives were standardized meant that memories of apartheid were increasingly framed “chronologically, structuring narratives temporally and orienting them … toward[s] events of graphic violence” (Ross 2003:330). Importantly, this genre was unique in the way it articulated individual stories as national-historical memories. In this sense, Truth Commissions not only aim to address past wrongs, but also actively seek to formulate a shared sense of a national past (Wilson 2001).

In South Africa then, the TRC was imagined to be a space for promoting new national identities. Being authentically South African “became tied up in how to respond to past human rights abuses” (Wilson 2001:14). The premise of the TRC was that South Africans had collectively been victims of state violence. The ritual element in the TRC was intended to heal the trauma by establishing new relationships between individuals in the idiom of a moral community. Individual stories became the grounds on which shared memories “could forge new forms of belonging” (Ross 2003:333). In the courtroom, as elsewhere, the use of TRC-style narration enables the accused to claim a stake in this “new form of belonging,” through the circulation of individual memories that refract collective experiences of racialized violence.

The practical effect of utilizing this particular narrative form is clear: the master narrative of authoritative torture techniques allows the accused to deploy collective memories of past abuses as a rejoinder to a legal system that is aiming to redefine moral subjects through them. In so doing, the narratives effectively delegitimize the moral authority of the postapartheid criminal justice system.

To further understand why the narration of torture produces this effect, we must trace the narrative form to the organization of violence under apartheid and to the subsequent human rights hearings. Throughout the apartheid era, the state censorship apparatus monitored and suppressed all narratives implicating state officials. In part as a response to this mode of censorship, the postapartheid state has come to value narratives about the past as a means for “reclaiming the ordinary” (Wilson 2001:15). Notably, the TRC hearings focused heavily on forms of violence that could be quantified. Although the hearings consequently paid more attention to high-profile, iconic events than to systemic forms of “everyday” violence, they succeeded in providing a narrative mode for articulating myriad experiences of violence under the apartheid regime.

In South Africa, narrating experiences of violence to the public was intended to function as a prophylactic against future acts of violence. The narrative structure cultivated by the TRC gained widespread recognition, as radio, television, and electronic media broadcasted the Commission's work to a wider audience. The media popularized the testimonial form and transformed it into a template for expressing individual experiences of suffering. As we shall see, this mode of storytelling influences how citizens dialogue with the nation-state, and in this case, how the accused frame their response to the court.

Representations of (Historical) Violence

Precisely because the accused's testimonies refract this sociohistorical account, they resist “the blank slate that much social-psychological theorizing implies” (Ross 2003:332). The deployment of the testimonial-narrative form allows the accused to bring history back into the courtroom, refusing its sublimation into juridical logic. Images of torture described by the accused (i.e. “a plastic bag was put over my head and I lost consciousness,” and, “a car battery was taken out of the bag and attached to my private parts,” and, “my body was shocked repeatedly”) are all images that occur at multiple points in the TRC human rights hearings. These images invoke the configuration of power and the organization of violence under apartheid.

Further, by drawing on this narrative form, the accused indicate a refusal to reduce the historical genealogy of violence to the logic of legal liberalism. Accordingly, the narrative form produced through the TRC, and replicated in the courtroom, simultaneously acts as a vehicle for seeking “rights of recountability,” as a mode for contesting the moral authority of the judge, and as a means for enabling the state to incorporate past abuses into its historical account through a well-established idiom. As a result, while the accused's appeal in the trial-within-trial is ultimately unsuccessful, it does serve to offer an alternative moral logic to the court. In opposition to the judge's moral framework, which locates the primary impulse toward violence in the individual biography of the criminal, the accused employ a moral logic that locates the state as the site for the production of violence. Thus, Judge Webster advocates for a juridical model of liberal citizenship, while the accused position themselves as marginalized citizens who are still victimized by the modes of violence associated with apartheid.

In effect, by reminding the court of the state's historical and contemporary failure to protect its citizens from physical violence, the testimony of the accused raises the question: how can citizens of the state be expected to produce for the state and to safeguard the nation's social contract, when the state subjects them to modes of systemic violence? More, insofar as the testimonies of authoritarian violence draw on public memories of past abuses, the testimonies proffered in the court enable us to raise the overriding question: what are the conditions of possibility for reproducing the nation-state and the rights-bearing subjects therein? The testimony of the accused suggests that the presence of state-authorized violence severely constricts the reproduction of rights-bearing subjects. In other words, the precondition to creating moral and rights-bearing subjects is, foremost, the creation of a moral nation-state. Here, the use of TRC-style narratives makes clear that legal institutions are still being assessed in relation to the historical memories of state violence.

Conclusion: The Spectacle of the Crime Scene

In the postapartheid context, crime has been discussed intermittently as a means of production, a morality of indifference, a mode of resistance, and as a residue of apartheid. At various points, these themes emerge in the Reeds Murders case, enabling the court and the accused to posit particular representations of a postapartheid moral order. Interestingly, similar themes can be found in other postcolonial spaces. Siegel (1998:78), writing about the development of crime and violence throughout Suharto-era Indonesia, notes that crime became a means for gaining recognition that did not depend on the state. Amid political chaos, controlling criminality becomes symbolic and suggestive of the state's capacity to control the means of coercion. The prosecution of crime generates meaning in Indonesia, as it does in South Africa, because it allows the state to perform its strengths against the body of the criminal. The spectacle of the state's actions stages the performance of dominance, at the same time as it operates as a means of domination (Wedeen 1999:13).

If that spectacle generates power for the postcolonial state, it also brushes against the grain of certain renderings of modernity. In Discipline and Punish, for instance, Foucault (1977:194) argues that a marker of modernity is a specific triangulation between sovereignty, discipline, and government, through which increasingly self-regulating subjects are produced via disciplinary power. While this new technology of power should not be understood as categorically displacing the once-popular form of spectacular, public punishment, Foucault (1977:217) does posit that the old “pomp of sovereignty” has been superceded by the “daily exercise of surveillance.” In the Foucaultian narrative, modernity is characterized by the internalization of disciplinary control, rendering unnecessary an external disciplinary figure or public spectacles.

Yet, in many postcolonial contexts, spectacles of punishment remain critical for the production of state sovereignty. Further, given the challenges to state power posed by structural adjustment reforms, the postcolonial state often lacks the kind of institutional structures imagined to be necessary for the exercise of disciplinary surveillance. Lisa Wedeen suggests that the conditions of postcolonial governance call into question many of Foucault's underlying assumptions. In contrast to Foucault's genealogical reading of the shift from sovereignty to discipline, Wedeen argues that the internalized, disciplinary technologies purported to be constitutive of the modern can be combined with sovereign power “to produce new variants of the modern” (Wedeen 1999:19). Here, the spectacle does several things at once: first, it disciplines the participants; second, it dramatizes the state's power; third, it anchors political claims in concrete symbols; and lastly, it frames “the ways people see themselves as citizens” (Wedeen 1999:19).

In South Africa, the spectacles of crime and discipline are particularly effective at demonstrating state sovereignty. In effect, the state's capacity to govern—limited as it may be by the influx of non-governmental organizations, multinational corporations, and international agencies—is simulated in stage performances. Like the colonial and apartheid state's responses to swart gevaar (black peril), the neoliberal state's response to crime scares makes law “appear to act decisively upon forces of darkness” (Comaroff and Comaroff 2004:813). The figure of the criminal, still constituted in the body of black men, as it was during moments of black peril, has consistently been used by the state to proclaim its power of safeguarding moral norms and protecting the boundaries of the community. However, in the neoliberal moment, the obsession with criminality is motivated by more than just the fears and anxieties of political (and sexual) subversion that were common in the formulation of swart gevaar. The outlaw now embodies “a displaced discourse about desire and impossibility,” a discourse which speaks directly to the prospects implicit in the liberation movement and denied in the postapartheid era (Comaroff and Comaroff 2004:807).

Since the end of apartheid, criminal prosecution has become a forum for larger debates and contestations over morality. At its best, the jural domain is imagined to be a space for “orchestrating social harmony” (Comaroff and Comaroff 2003b). This becomes particularly important in contemporary South Africa, as the radical reconfiguration of social relations accompanying the transition to democracy has destabilized a sense of collective solidarity, of the sort once shared by activists and soldiers united against the apartheid regime. The language of legality is utilized not only to establish contractarian relationships, which are highly valued in the neoliberal context, but also to mediate difference in a place that is marked by contestations over difference.

While understanding the perceived failures of the liberation movement and the regulatory state therefore enables us to appreciate why crime has become such an intense site of social concern, and why appeals are increasingly made to juridical bodies, it does not explain why black youth, especially, have come to index deviancy and moral outrage. In order to deal with this aspect of the phenomenon, it is first necessary to recognize that black youth—who compose the largest sector of South Africa's population—occupy an ambiguous, and often contested, social position. They index both the promise (or, once, the spear) of the nation, as well as the threat of its failed reproduction.12

Here, the category of “youth” is best interpreted as a “social shifter,” since South African youth signify many things at once (Durham 2004:592). Despite the multiple subject positions potentially available to South African youth, there has been a tendency to homogenize youth into a collective noun, defined as a “faceless mass of persons who [are] alike underclass, unruly, male, challengingly out of place—and, at once physically powerful and morally immature” (Comaroff and Comaroff 2006b:273). In South Africa, it is significant that the category of youth has shifted, expanded, and diversified since the transition to democracy. Growing unemployment, the loss of blue-collar jobs, and the lengthening of school curriculums has effectively prolonged youth; and, with the exclusion of youth from the national economy, “normative paths to adulthood [have become] either irrelevant or impossible to traverse” (Cole 2004:574). If black youth are social shifters, situated in a highly uncertain and morally charged social space, we can appreciate why they have become the site of moral outcry—as well as what they represent to the postapartheid state. In the Reeds Murders case, the accused come to embody precisely this kind of terrorizing black youth whose image looms large in contemporary South Africa.

Criminal violence as enacted by black youth does many things at once: it provides a space for accumulating wealth and gaining recognition that does not depend on the state, at the same time as it showcases the limitations of the state. The prosecution of criminal violence, in highly visible terms, reassures the populace of the state's control over its citizenry. The case of the Reeds Murders calls forth the underlying themes animating discussions about crime and discipline in South Africa. Through the public condemnation of the murders, the nation is able to imagine a state, embodied in the figure of the judge, vested with the power of disciplining its wayward subjects and holding up the jural-rational model of responsible, enabled citizens (whether black or white—the salient identity being that of successful, laboring subjects).

Those accused of the murder, on the other hand, are able to draw from well-circulated tropes about the sense of loss, of “empty promises,” and of past abuses, in order to challenge the state and delegitimize the moral authority of postapartheid legal institutions. Meditating on the Reeds Murders allows a wider South African public to play out the fears and hopes of the postapartheid era on the stage of the courtroom, where faith in a capable nation-state conjures up a fantastical spectacle of law and order against the background of increasing disorder. In this sense, the Reeds Murders is a site for a wider South African audience to envision the construction of moral order and to articulate a public morality through the representation of the case.

Notes

  • 1

    In 2000–04, only 8 percent of crimes recorded by the Department of Justice resulted in a successful conviction (Schönteich 2002).

  • 2

    Between 2001 and 2004, the Reeds Murders were reported on in various articles appearing in the Cape Times (Helfrich and Smetherham 2001), Cape Argus (Schronen 2001), The Star (Helfrich Govender 2001; Venter 2004), South African Press Association (Mofokeng 2003), Pretoria News (Venter 2003a, 2004), and Financial Times (Judge Lambasts Merciless Murders 2001, 2004).

  • 3

    For example, in 2001, 181,638 cases were outstanding. This figure represents the backlog of cases the courts had to contend with in 2002, and is particularly high given that the number of outstanding cases at the end of 2001 was equal to over half of all cases prosecuted during that year (Schönteich 2002).

  • 4

    According to Brigitt Mabandla, Minister for Justice and Constitutional Development, of the 210 judges in all South Africa's courts, white men are still in the majority, with 114 judges or 54 percent. See transcript: http://www.info.gov.za/speeches/2004/04082016151005.htm.

  • 5

    Although white judges are still over-represented in the South African judiciary, the ANC has resolved to “expedite the transformation of the judiciary, to create a more representative, competent … and responsive judiciary” (ANC Umbralo Document No. 23, 2005). Yet it is hard to assess what the effects of this resolution will be in the future, since the current demographic profile of the judiciary is still dominated by white males. Further, Judge Hlophe, who is currently the contentious High Court President, has recently argued that the decisions of black judges are still more often scrutinized than those of white judges, and since black judges fear being labeled “incompetent” in sentencing, they are often even more likely than white judges to deliver harsh sentences. As a result, it is possible to conclude that black judges in South Africa might be just as likely to reproduce the logic of legal liberalism found in the Reeds Murders verdict.

  • 6

    In South Africa, school life spans 13 years or grades, from grade 0 through to grade 12, which is known as the “matric year” or the year of matriculation. Compulsory general education ends at grade 9.

  • 7

    It should be noted that the category of “street children” invoked here carries with it a host of pejorative conations. Of course, this category is not uncontested in postapartheid South Africa, and its casual use in this case indicates the kind of audience the court believes itself to be addressing.

  • 8

    The “matric” is a cumulative examination which all students must pass in order to matriculate from high school.

  • 9

    Vetkoeks are donut-like sweet treats, associated depreciatively with unskilled female labor.

  • 10

    As noted earlier, the judge's claim here ignores a successful lawsuit against members of the Brixton Murder and Robbery Unit.

  • 11

    The testimonies of the other two accused are nearly identical, and I have not included them here merely due to reasons of space.

  • 12

    The militant wing of the anti-apartheid movement was called Umkhonto we Sizwe (MK), which translates as “Spear of the Nation.” Importantly, MK soldiers were often youth who had postponed their studies because they believed that their future well-being could only be secured by means of “liberation now, education later” (Xaba 2001:r).

Ancillary