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This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

The Law and Violence in South African History

Violence has been the single most determining factor in South African political history. The reference, however, is not simply to physical or overt violence - the violence of the gun - but also to the violence of the law or what is often referred to as institutional or structural violence.

White dominance in South Africa in the period covered by the Commission's mandate was founded on colonial conquest, a condition consequent upon more than 200 years of near-continuous interracial conflict which began with the first migration of white settlers in the mid-seventeenth century. Initial penetration was relatively simple as the first encounters of these new northward-moving migrants were with nomadic pastoralists with little or no military tradition.

Beyond them, however, were more formidable opponents. Originally southward-moving migrants themselves, these were now independent and, in some cases, powerful nations; state systems with hierarchic authority structures and deep-rooted military traditions. Like the northward-moving migrants, they farmed land, exploited natural resources and raised stock. Conflict was inevitable and, contrary to the myth propagated by some schools of local historiography, it did not take the form a series of one-sided victories and defeats.

The reality is that the conquest of the South African interior was achieved only in slow stages and was interspersed with setbacks and even defeats for the white intruders. Inevitably, however, the contest between firearms and assegais could have only one ending. By the twentieth century, the backbone of armed black resistance was broken and the independence of the people surrendered or ceded to 'protectorate status'.

Indigenous resistance did not, however, cease. It transformed itself into political and constitutional forms of struggle. But neither did the violence of the victors end. Subjugation by the gun gave way to legislative subjugation as one law after another sought to consolidate the gains of two centuries of overt violence. Stripped bare, the 1913 Land Act was an act of violence, a brutal separation of people from their essential means of sustenance. So too was much of the repressive legislation that followed down the years. Laws tore millions of workers from their families, forcing them to work in white areas and live in enclosed compounds to which their families had no access. Laws forced people to work for grossly insufficient remuneration and to endure the indignity of pay scales determined not by competence or experience, but by race. Laws forced people from their homes and communities and from their ancestral lands. Laws dictated with whom one might and might not have sex, marry or even drink. Laws allowed people to die rather than violate 'whites-only' hospital edicts, and then determined in which plot of ground they could be buried.

This preoccupation of the government with the law, with due constitutional process, with obtaining a legislative mandate for whatever acts (however heinous) it or its security forces committed, was frequently commented upon favourably by political analysts of the 1960s and 1970s. It was also often used to mount a defence of the system. The argument made was that it was at least a system of law, albeit bad law, and thus preferable to the military or political dictatorships to the north.

Hannah Arendt once famously wrote that in some states the law makes crime legal. And in that sense apartheid law was crime that was institutionalized by the state. The purpose of law was to legitimize the system, and hence to provide a means of self justification for those whose task it was to pass, enforce, and defend the law. Indeed, law became the major instrument of oppression.

However, in the 1980s, when the state was in crisis, it became clear that the law had run its course; that it could no longer do the job. The law had become ineffective, an apparent obstruction to the restoration of what government leaders, seemingly oblivious to the irony, called 'law and order'. At this stage, real rule-making power shifted from Parliament and the Cabinet to a non-elected administrative body, the State Security Council (SSC) which operated beyond public scrutiny. Nominally a sub-organ of the Cabinet, in reality the SSC eclipsed it as the key locus of power and authority in matters relating to security.1 In the context of counter revolutionary warfare theory a democratic state could never defeat a revolutionary non-democratic onslaught using democratic methods and hence the need to resort to clandestine, covert extra legal counter revolutionary acts. This provided the rationale for much of the covert and extra legal activities the SA regime embarked upon in the 1980s when it became clear that the state could not defeat the ANC, but that it had the capacity to contain it, and that that capacity was only subject to the constraints imposed on the breath of its activities.

The State Security Council stood at the apex of the secretive National Security Management System (NSMS) . Initially it targeted members of 'terrorist' groups operating outside of South Africa, as well as their supporters and hosts. Then, from the mid-1980s, it began focusing on its opponents inside South Africa. When it examined the records of the SSC the TRC found many documents containing directives that certain people, invariably people aligned with the anti apartheid structures that had emerged in the 1980s to 'eliminate,' "permanently remove from society,' neutralize' euphemisms, the TRC concluded for state sanctioned murder.

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