Can we address real crime in an overcriminalised society?

Martin van Staden / Midjourney
Martin van Staden / Midjourney

This article was first published by Daily Friend on 15 February 2024

South Africa is a country so beleaguered by out-of-control violent crime that in some cases it even makes active warzones look peaceful by comparison. 2024 is an election year, and you would think this scourge is receiving special attention from our political parties. It is not. 

Everyone agrees that violent crime is a problem, but the so-called ‘solutions’ put forward are the same kinds of ‘solutions’ you would expect to see in relatively safe societies: just police better!  

Were it only that simple. 

When we think about crime, we tend to have the common law offences of homicide, sexual assault, damage to property, fraud, and so forth in mind. But in reality, there are thousands of offences spread all throughout our Statute Book and even our Regulatory Book.  

To many, the sheer, almost unlimited scope that government has to create new ‘crimes’ out of thin air was only keenly felt during the disastrous Covid-19 lockdown, which stopped just short of criminalising our very existence. 


The Free Market Foundation and its Rule of Law Project are in the beginning stages of attempting to quantify just how criminalised South African society is today, under a Constitution that was meant to signal our departure from authoritarianism. 

Most would not know that a homeowner whose house is located in ‘an area’ where mining ‘activity’ (including prospecting and exploration) is taking place, is barred from refusing entry – onto their property – to employees of the Department of Mineral Development and Energy. The Mineral and Petroleum Resources Development Act (MPRDA) goes out of its way to make it clear that these employees do not even require a warrant – they can just demand to be let in.  

Refusing to do so could cost the homeowner R100 000 in fines, or even land them in prison. 

The drafters of the Tobacco Products and Electronic Delivery Systems Control Bill, now before Parliament, did not want to be outdone by the MPRDA. According to this bill, if one works from home or employs someone else inside one’s home, one may never, under this new law, smoke inside that house again.  

If the owner nonetheless does smoke (or vape!) inside their property, the penalty is a fine or imprisonment for up to five years. Imagine being placed in a cell alongside murderers and rapists, and your ‘crime’ was that you smoked or vaped inside your own house as a work-from-home salesperson. 

The South African Police Service (SAPS) is ultimately expected to enforce both these crimes and the myriad others scattered throughout our lawless criminal justice dispensation. It is an impossible task for an institution strained by lack of resources and is ultimately underresourced due to government mismanagement and incapacity. To top it off, at the same time we expect the SAPS to protect us from real – that is, violent – crime.  

We all know that, because of this, the police have failed to keep us safe, allowing a crime rate of 75 murders per day and a rate of five rapes every single hour. To top it off, the National Prosecuting Authority (NPA), that other bastion of law enforcement, boasts a 15% conviction rate for murder and an 8% conviction rate for rape.  

The Police and Justice ministries ultimately bear responsibility for the failure of the SAPS and NPA. Deep reform is required. 


Section 12 of the Constitution, for the context South Africa finds itself in, is perhaps the most important provision in our highest law that is basically dead-letter. It says that everyone has the right ‘to be free from all forms of violence from either public or private sources.’  

Think about that.  

What is a ‘public source of violence’ if not a government that arrests homeowners because they refuse a stranger entry into their homes? And what is a ‘private source of violence’ if not the thousands of violent criminals the government fails to bring to justice, because it is too busy arresting peaceful South Africans for doing any number of innocuous but nonetheless criminalised things? 

To really address violent crime in South Africa, we need to cut away the fat.  

Of course, we need to capacitate the police and prosecutors, build more prisons, and decentralise policing to both local and private actors. 

But, ultimately, we need to make sure crime-fighters are focusing on real crime, rather than peaceful homeowners who gatekeep entry onto their property or – Heaven forbid – decide to smoke inside their own houses.  

This means that widespread decriminalisation is necessary, and it is only good news that in recent years steps have been taken to decriminalise the recreational use of marijuana and the enterprise of sex work.

The scourge of violence will not be addressed unless we get serious and radical about criminal justice reform. 


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The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation. This article may be republished without prior consent but with acknowledgement to the author.




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