The creation of black criminality in South Africa

There is a seamless transition in how the South African state in tandem with capital, for 400 years utilize prisons to control black bodies.

The abandoned site of an old reformatory in Cape Town, South Africa. Image credit Mallix via Flickr.

[T]he prison is more than an institution composed of cages, corridors, and guard towers; it is also a system of affects, desires, discourses, and ideas that make the prison possible… The prison could disappear tomorrow and the types of power that give rise to its reign could live on in other forms such as the regimes we call freedom, rights, and the state.

Stephen Dillon, 2016

There is an intimate relationship between the prison and concepts of freedom, as Stephen Dillon observes. Operating on dual levels, as both confinement and the basis for freedom, the institution of incarceration has an ambivalent presence. “The prison is present in our lives and at the same time, the prison is absent in our lives,” argued Angela Davis. This oscillating presence/absence masks the ideological function that the prison serves, as “a site into which undesirables are deposited, relieving us of the responsibility of thinking about the real problems that afflict the communities from which prisoners are drawn.” It exists, in other words, to produce and naturalize the category of “undesirables.”

The prison has a strikingly prominent place in South African history. As Michel Foucault argues through the concept of the carceral, the prison operates not only as a physical space but as a powerful social formation. In South Africa, colonial discourses of African disposability and unfitness for owning land operated alongside laws that created new forms of criminality. Because the colonial and apartheid states saw themselves as bastions of civilization in a sea of African barbarity, they used the instrument of the law to generate new forms of criminality and to transform black people into carceral bodies by definition. These bodies were also expediently made available for exploitation as cheap labor. The proliferating use of the pass laws (first passed under British colonial rule in 1809 and only abolished towards the end of apartheid in 1988) and the Masters and Servants Act (1841 and 1856, and only abolished in 1974) eventually created the largest imprisoned population on the continent. Such laws created widespread African illegality at a scale “as industrial as making cars.” At the level of discourse, they generated the notion that black bodies are inherently criminal, deviant, and dangerous. That is, following Angela Davis and Katherine McKittrick’s formulation, they naturalized the “undesirability” of African subjects.

What explains the long hold of the prison on notions of state governance from the colonial to the apartheid and even post-apartheid periods? The laws that cast a widening net of criminalization over Africans remained in place for nearly 180 years and became built into the very structure of the South African state. In fact, after the South African war ended in 1902, the state and the mining industry became increasingly reliant on the labor of incarcerated Africans. There was a direct correlation between laws that increased levels of imprisonment and the labor needs of the state and the agricultural and mining industries. As Charles van Onselen notes, this mutual reliance on prison labor reflected a “deeper circular logic” of an “economy… heavily reliant on labour-repressive institutions and instruments such as compounds, prisons and pass laws.”

The infinitely painful pass laws terrorized black South Africans by making their presence in their own country a crime. During apartheid, any black South Africans who did not have approved employment and was caught outside the Bantustans was immediately charged with a crime. This ensured that to be African in South Africa was to be criminal. The Bantustans were created by the apartheid state in order to remove black people’s South African citizenship and simultaneously acted as impoverished labor reserves with an endless supply of vulnerable workers, always either imprisoned or about to be imprisoned. Indeed, during apartheid, “the pass laws ensured the constant flow of men into and out of prisons” (per Van Onselen). These laws tied the state to the mining industry through a system of continual imprisonment of black people.

The South African prison system developed alongside and in parallel with the mine compound. De Beers operated both mining compounds and the earliest private prisons in South Africa. The explicit relationship between the mining industry and the industrial scale of state incarceration became clear by the end of the South African War. “The mining company … paid the state for the use of their prison labour. By the end of the 19th century, the De Beers Diamond Mining Company was using over 10,000 prison labourers daily.” Through its penal policies, the state in effect became a channel of cheap labor to the mines. K.C. Goyer notes that “convict labor was integral to the growing South African mining industry until as recently as 1952” and was only abolished in 1959. Even after the legal ending of prison labor, policies such as the “teaching of skills” and the recommendation of “useful and healthy outdoor work” for short-term prisoners nonetheless ensured that the state continued to benefit from penal labor. The relationship between the South African and the mining industry exemplified the cynical conclusion that “[e]very system of production tends to discover punishments which correspond to its productive relationships.”

The colonial prison system thus shaped the creation of a modern industrial labor force in South Africa through the production of a constant source of imprisoned labor. This closed machine for manufacturing systematic African criminality would govern the colonial and apartheid economies for over a century and a half. By the early twentieth century, the system of incarceration had become an “accelerating motion of an engine of oppression.” From 1902 to 1936, there was “a huge increase in the numbers sentenced and imprisoned. Very nearly all were black men prosecuted under the taxation, pass and masters and servants laws.” Much of the modern South African landscape was built through forced labor. This is obvious on slave-built farm estates, but prison labor was also used to build public roads constructed during the 1840s and 1850s, as well as the breakwater that forms the harbor of Cape Town.

Criminalization is therefore central to the history of labor in South Africa. The dangerous connection posited between poverty and moral degradation was given a particular racial taint in South Africa. The political threat posed by racial mixing, especially among the poor, drove an elite project to separate black and white workers under the guise of the “moral threat” of racial mixing. The criminalization of black workers served to divide workers along race. In effect, just as Pumla Dineo Gqola argues that “rape creates race,” the development of the working class in South Africa was profoundly shaped by incarceration.

The normativity of racialized incarceration transformed black men into prison material whose confinement was seen as necessary both for their own rehabilitation, and for ordinary society to function safely and effectively. The imprisonment of African and formerly enslaved people therefore became naturalized and even insidiously viewed as beneficial. In the 1930s, the South African government created programs to address “coloured poverty” that took the form of the “teaching of skills” through the increasing use of prison labor for road-building and farming. Through these policies, African and coloured bodies were emptied of all meaning other than carcerality, and marked by the taint of criminality as “waste” bodies which could only be redeemed by useful (imprisoned) labor. This turned black people into objects of fear and simultaneously obscured the crimes that they themselves experienced. Reviewing South African practices of incarceration in the mid-twentieth century, Gail Super concludes that “coloured and black men were disproportionately criminalized under apartheid [while] coloured and black crime victims were largely ignored by white South Africans.”


Post-apartheid incarceration

The use of incarceration as a state policy continued untrammeled from the colonial to the apartheid periods. Worryingly, the post-apartheid period also shows clear continuities with colonial and apartheid policies. Lukas Muntingh notes that “the rate at which South Africans are currently arrested rivals the situation experienced during apartheid.” In fact, Super concludes that “in South Africa today, imprisonment forms a central plank of the government’s crime policies.”

I wish to introduce a further factor into this analysis—while black people as a whole have suffered grievously from a century and a half of mass incarceration in South Africa, the industrial scale of criminalization and confinement takes particular force among a specific group of black people—the descendants of enslaved people, who were known after emancipation as “coloureds.” There are clear continuities between “black” (at first termed “native” in apartheid legislation) and “coloured” identities, though these were created as separate racial identities through apartheid’s Population Registration Act of 1950, and black people were placed at the bottom of the racial hierarchy. Despite apartheid’s targeted violence against black people, incarceration figures show that coloured men are imprisoned at twelve times the rate of white men, and twice the rate of black men. This striking phenomenon of disproportionate levels of incarceration has continued from the colonial period to apartheid and even into the post-apartheid period.

How does one explain the contradiction between apartheid’s racial theory and its practice of punishment, manifested in the continuing mass imprisonment of formerly enslaved (i.e. coloured) people and their descendants? The answer, I argue, lies in the foundational role of 176 years of slavery in South Africa, which has acted as a hidden force in the country’s political culture since emancipation. These numbers suggest that the slave-based system in the Cape Colony generated a code of disposability that continues to shape how formerly enslaved people were viewed after emancipation, that is, as deviant, criminal and in need of control and repair. This formulation of inherent deviance and infinite reparability is evident in the notion that incarceration is actually a benevolent state policy. Government programs in the 1930s that led to the increasing use of prison labor for road-building and on farms were described as addressing coloured poverty through the “teaching of skills.”  These laws therefore acted as a means to produce exploitable labor and embedded apartheid-era capitalism in a longer history of slavery and colonialism. The history of the post-emancipation period in South Africa shows an increasing reliance by both public and private capital on prison labor and discourses of criminality, intoxication, and physical malaise were used to naturalize the resulting epidemic levels of incarceration.

Today, this infrastructure of widespread incarceration has attached a discourse of moral failure and physical contamination to black and coloured neighborhoods. The association of such subjects with notions of crime, gangsterism, alcohol and drug abuse, dependency, lassitude and sexual deviancy has created a category of people who appear to deserve and even need punishment.

Intimate and industrial punishment

The system of corporal punishment, based on the Masters and Servants Acts, imposed the brutal, degrading and intimate punitive act of whipping on prisoners. James Midgley’s study shows that the widespread use of corporal punishment began immediately after emancipation and continued into the 1970s of corporal punishment, suggesting that the stain of disposability remained attached to emancipated bodies. As the history of punishment in court documents reveal, the severity of such whippings (often more than 100 lashes) has led to severe injury and even death. Despite this brutal history, more than 34,000 young offenders were subjected to whipping as recently as 1970 and its application was explicitly racialized. Originally, in fact, whipping could be enacted solely against black convicts, a policy which only changed in 1880. By 1952-1954, state figures of corporal punishment against juvenile offenders showed “an orgy of whipping.” Reviewing such sentencing in 1970, James Midgley shows that “[t]he great majority of children who were sentenced to corporal punishment were coloured.” Moreover, he finds that “while sixty percent of all coloured offenders were whipped, corporal punishment was imposed on only twelve percent of white offenders.” Midgley observes that about fifty percent of black men who appeared before the Cape Court were subjected to whipping. This revealing figure, as well as the fact that even during apartheid, with its focused violence against black people, coloured men were imprisoned at twice the rate of black men, indicates that the taint of disposability and criminality associated with enslaved bodies has shaped rates of incarceration both before 1994 and into the present.

Could the reason for the repeated use of the intimate punishment of whipping during and after slavery be that the enslaved (and, later, coloured) body, in contrast to Khoisan and Nguni bodies, was viewed as both infinitely broken and infinitely repairable? Was the enslaved body nearer to that of the slave-owner and therefore potentially nearer human, if disciplined, compared to indigenous bodies, which were seen as inaccessible and incorrigible? Could the nearness of slave bodies hold both a threat and a promise to repair the flaw of race?

The text below allows me to explore further this apparently oscillating view of coloureds as impaired and in need of fixing. In December 2011, a controversial public service advertisement to discourage drunk driving called “Papa Wag Vir Jou” (“Daddy’s Waiting for You” in Afrikaans) appeared on South African television. In the advert, a series of men appear on screen one by one to describe their ideal partner. The lines spoken by successive men were “I’m looking for that special person;” “Someone who can handle heavy situations with a smile;” “These hands will never let you go;” and “I’m quite demanding physically.” Gradually the lines become more sexually overt and are expressed with more loaded meaning. Only at the end of the advertisement does the camera pull back to reveal that the men are in prison uniforms, surrounded by a crowd of other men clad only in their underwear. While the earlier lines are all in English, the final line of the series, “Papa Wag Vir Jou,” is delivered in Afrikaans. In retrospect, the sequence of the lines and the tone of weighted intimacy in later lines, especially “Daddy’s Waiting for You,” makes clear that the basis of advert’s appeal not to drink and drive was the implicit threat of male rape in prison. The advertisement was reported to the Advertising Standards Authority of South Africa for racism and homophobia, but the ASA dismissed these objections.

The literary scholar Bernard Fortuin has compellingly analyzed the advertisement in his doctoral research on a queered history of homosexuality in South African institutions, but I wish to point to its naturalization of who belongs in prison. Behind its public appeal to reduce drunk driving, the advertisement signaled that some people are at home in prison while others do not belong. The former act as a warning to the public. The bodies who most clearly signal that they belong inside prison are black and coloured men, whose familiarity with the place—their at-homeness there—is signaled by their tattoos, their at-ease bodies and their casual hand gestures. In contrast, a white man at the beginning is stiff and nervous and a second white man laughs self-consciously. The third man in the sequence is African and he looks intently at the camera. In contrast, the loose delivery of the three coloured men who follow him makes the implied threat of rape at the end even more blatant. As Fortuin notes, their treacherously sexual brown bodies suggest their familiarity with prison and its intricate hierarchies, violence and power, which is shockingly clear in the advert. The sexualization and commodification of transgressive coloured bodies can be seen here and also in the songs and music videos of the white South African music group “Die Antwoord.” Fortuin points out how such men’s bodies are simultaneously “threatening and sexually alluring to the South African public,” arguing that part of the advert’s effect comes from the fact that the “prison has been confounded with homosexuality in the South African context.”

The “Papa Wag Vir Jou” video relies on the implicit threat of prison rape to deter people from drunk driving. Its larger effect, however, is even more disturbing—which is to entrench the putative link between black and coloured men and criminality. The history of carceral bodies outlined above allows us to revisit this unremarked association of diverse black masculinities with a sense of at-home-ness in prison. In the visual narrative of “Papa Wag Vir Jou,” these bodies do not strike me as repairable, but rather, they are naturalized in the setting of prison. Instead of being redeemable, the coloured bodies arrayed in the prison are portrayed as duplicitous and threatening. In fact, the assumption at first that the men are innocently referring to their ideal partner is revealed as dangerously naïve. Especially the men who appear toward the end of the advert cannot be trusted. The prison could well be the space of abjection for the putative drunk driver who may end up among the men in the advert, facing the threat of rape. But instead of fulfilling the promise to repair the “flaw” of race, the men who are at home there reveal themselves to be irredeemably and inherently “dirty.” And that is why they belong in prison.

Further Reading

Boers and Bantus

Vintage clips, from 1961, of Nelson Mandela, ZK Matthews, Helen Joseph, among others, on a Dutch TV program talking liberation from white supremacy.