Why bullshit hurts democracy more than lies

Why is bullshit so harmful?
Ted Eytan, CC BY-SA

Since the inauguration of Donald Trump as president, members of his administration have made many statements best described as misleading. During the administration’s first week, then-press secretary Sean Spicer claimed that Trump’s inauguration was the most well attended ever. More recently, Scott Pruitt claimed falsely to have received death threats as a result of his tenure at the Environmental Protection Agency. President Trump himself has frequently been accused of telling falsehoods – including, on the campaign trail, the claim that 35 percent of Americans are unemployed.

President Trump with EPA Administrator Scott Pruitt.
AP Photo/Andrew Harnik, File

What is extraordinary about these statements is not that that they are false; it is that they are so obviously false. The function of these statements, it seems, is not to describe real events or facts. It is instead to do something more complex: to mark the political identity of the one telling the falsehood, or to express or elicit a particular emotion. The philosopher Harry Frankfurt uses the idea of bullshit as a way of understanding what’s distinctive about this sort of deception.

As a political philosopher, whose work involves trying to understand how democratic communities negotiate complex topics, I am dismayed by the extent to which bullshit is a part of modern life. And what bothers me the most is the fact that the bullshitter may do even more damage than the liar to our ability to reach across the political aisle.

Bullshit does not need facts

Democracy requires us to work together, despite our disagreements about values. This is easiest when we agree about a great many other things – including what evidence for and against our chosen policies would look like.

You and I might disagree about a tax, say; we disagree about what that tax would do and about whether it is fair. But we both acknowledge that eventually there will be evidence about what that tax does and that this evidence will be available to both of us.

The case I have made about that tax may well be undermined by some new fact. Biologist Thomas Huxley noted this in connection with science: A beautiful hypothesis may be slain by an “ugly fact.”

The same is true, though, for democratic deliberation. I accept that if my predictions about the tax prove wrong, that counts against my argument. Facts matter, even if they are unwelcome ones.

If we are allowed to bullshit without consequence, though, we lose sight of the possibility of unwelcome facts. We can instead rely upon whatever facts offer us the most reassurance.

Why this hurts society

In the absence of a shared standard for evidence, bullshit prevents us from engaging with others.
Mike Gifford, CC BY-NC

This bullshit, in my view, affects democratic disagreement – but it also affects how we understand the people with whom we are disagreeing.

When there is no shared standard for evidence, then people who disagree with us are not really making claims about a shared world of evidence. They are doing something else entirely; they are declaring their political allegiance or moral worldview.

Take, for instance, President Trump’s claim that he witnessed thousands of American Muslims cheering the fall of the World Trade Center on Sept. 11. The claim has been thoroughly debunked. President Trump has, nonetheless, frequently repeated the claim – and has relied upon a handful of supporters who also claim to have witnessed an event that did not, in fact, occur.

The false assertion here serves primarily to indicate a moral worldview, in which Muslims are suspect Americans. President Trump, in defending his comments, begins with the assumption of disloyalty: the question to be asked, he insisted, is why “wouldn’t” such cheering have taken place?

Facts, in short, can be adjusted, until they match up with our chosen view of the world. This has the bad effect, though, of transforming all political disputes into disagreements about moral worldview. This sort of disagreement, though, has historically been the source of our most violent and intractable conflicts.

When our disagreements aren’t about facts, but our identities and our moral commitments, it is more difficult for us to come together with the mutual respect required by democratic deliberation. As philosopher Jean-Jacques Rousseau pithily put it, it is impossible for us to live at peace with those we regard as damned.

It is small wonder that we are now more likely to discriminate on the basis of party affiliation than on racial identity. Political identity is increasingly starting to take on a tribal element, in which our opponents have nothing to teach us.

The liar, in knowingly denying the truth, at least acknowledges that the truth is special. The bullshitter denies that fact – and it is a denial that makes the process of democratic deliberation more difficult.

Speaking back to bullshit

These thoughts are worrying – and it is reasonable to ask what how we might respond.

One natural response is to learn how to identify bullshit. My colleagues Jevin West and Carl Bergstrom have developed a class on precisely this topic. The syllabus of this class has now been taught at over 60 colleges and high schools.

Another natural response is to become mindful of our own complicity with bullshit and to find means by which we might avoid rebroadcasting it in our social media use.

Neither of these responses, of course, is entirely adequate, given the insidious and seductive power of bullshit. These small tools, though, may be all we have, and the success of American democracy may depend upon our using them well.

Michael Blake, Professor of Philosophy, Public Policy, and Governance, University of Washington

This article was originally published on The Conversation.

Lava, ash flows, mudslides and nasty gases: Good reasons to respect volcanoes

Lava flow moves in the Leilani Estates subdivision near Pahoa on the island of Hawaii, May 6, 2018.
USGS via AP, CC BY

Volcanoes are beautiful and awe-inspiring, but the ongoing eruption of Kilauea on Hawaii’s Big Island is showing how dangerous these events can be. So far this event has destroyed dozens of homes and displaced hundreds of people, but no deaths or serious injuries have been reported. Other volcanic eruptions have had deadlier impacts.

As a volcano scientist, I’m very aware of deadly volcanic eruptions can be, even the “nonexplosive” kind we’re seeing in Hawaii now. Since A.D. 1500, volcanic eruptions have killed more than 278,000 people.

Today there are 1,508 active volcanoes around the world. Each year, some 50 to 60 of them erupt. Around 800 million people live within volcanic risk zones. Volcanologists study and monitor volcanoes so that we can try to forecast future eruptions and predict how widely the damage could reach.

When mountains explode

Volcanic eruptions can be broadly divided into two types: explosive and nonexplosive. Explosive eruptions occur when magma, which is molten rock in the ground, contains gas. These eruptions are so energetic that the magma is pulverized into small rock particles, called volcanic ash.

Explosive eruptions are responsible for the highest number of volcanic-related deaths. These events can distribute volcanic ash hundreds of miles from the volcano, causing billions of dollars in air travel disruption, water supply pollution and damage to power lines, structures and machinery. Krakatoa in the Pacific (1883) and Mount St. Helens in Washington state (1980) are examples of explosive eruptions.

U.S. Geological Survey scientists recount their experiences before, during and after the May 18, 1980 eruption of Mount St. Helens, which killed 57 people, including a USGS researcher.

The most dangerous features of these events are volcanic ash flows – swift, ground-hugging avalanches of searing hot gas, ash and rock that destroy everything in their path. Ash flows produced during the A.D. 79 eruption of Mount Vesuvius in Italy entombed the towns of Herculaneum and Pompeii. In 1902, ash flows from the eruption of Mount Pelee on the Caribbean island of Martinique killed more than 29,000 people.

Lava flows and fountains

Nonexplosive eruptions occur when little to no gas is contained within the magma. These events produce small fire fountains and lava flows, such as those currently erupting from Kilauea.

Nonexplosive eruptions tend to be less deadly than explosive eruptions, but can still cause great disruption and destruction. Eruptions at Hawaiian-style volcanoes can occur at the summit or along the flanks. New eruptions typically begin with the opening of a fissure, or long crack, that spews molten lava into the air and sometimes forms lava flows.

As reports from Hawaii are showing, lava tends to flow rather slowly. Typically it is easy to outrun a lava flow but impossible to stop or divert it. People can escape, but homes and property are vulnerable.

Lava flows and fountains consuming homes and property in Leilani Estates on the island of Hawaii.

Both explosive and nonexplosive eruptions release volcanic gases, producing a hazardous blend called volcanic fog, or VOG. VOG contains aerosols – fine particles created when sulfur dioxide reacts with moisture in the air. It can cause health problems, damage crops and pollute water supplies.

These particles have global consequences when eruptions eject them into the stratosphere, where they block sunlight, cooling Earth’s climate. This effect can cause widespread crop failure and famine and is responsible for many historic volcanic-related deaths. For example, the 1815 explosive eruption of Tambora in Indonesia caused 92,000 starvation-related deaths.

VOG (volcanic fog), produced by gases from Kilauea, hangs low over the Hawaiian Islands on December 3, 2008, producing unhealthy sulfur dioxide concentrations.
NASA Earth Observatory

Snow-capped volcanoes, such as those in the Cascades and Alaska, can produce mudflows, or lahars. These hazards form when ice and snow melt during an eruption, or ash is washed loose from the surface by heavy rain.

Mudflows have tremendous energy and can travel up to 60 miles per hour down river valleys. They are capable of destroying bridges, structures, and anything else in their path. A mudflow from the 1985 eruption of Nevado del Ruiz in Colombia killed 25,000 people.

Getting ready for the next eruption

By studying past and current eruptions, volcanologists constantly refine our ability to predict and mitigate the hazards and risk associated with volcanic activity. But people who live within range of volcanic hazards also can minimize their risk.

All residents of these zones should develop household plans for evacuating or sheltering in place and prepare emergency kits with first aid supplies, essential medicines, food and water. Events like the Kilauea eruption are reminders that preparing before natural disasters can make communities more resilient when these events strike.

Brittany Brand, Assistant Professor of Geosciences, Boise State University

This article was originally published on The Conversation.

How a deal with provincial strongmen is haunting South Africa's ruling party

North West Premier Supra Mahumapelo (centre) before the announcement that his province is being taken over by national government.
EPA-EFE/STR

Last year South Africa’s governing African National Congress (ANC) elected a new leadership which was the result of a hard boiled deal between the party’s factions. South Africans can now see how the deal which produced a new governing party leadership last year is meant to work. It may keep the ANC together and is unlikely to worry people in the major cities much. But it could make an already serious inequality problem worse.

The nature of the deal is revealed by events in North West province where Supra Mahumapelo, an unpopular provincial premier, seems set on remaining in power despite voter rejection and demonstrations calling for his head. He has so far been able to do this because he controls the provincial ANC structures.

The national leadership has placed the province under the administration of central government. But that is more an admission of defeat than a solution. It’s an acknowledgement that central government could not solve the problem politically and so it’s been forced to use administrative measures.

To understand these events, we need to go back to the ANC’s December conference at which its current leadership, with Cyril Ramaphosa as President, was elected. The choice of leaders was the product of a deal which saw the leadership group divided equally between supporters and opponents of former president Jacob Zuma.

It was also a compromise between two types of politics – one which uses the state’s resources for enrichment and patronage and one rooted in the market which opposes government behaviour that might weaken its ability to create wealth.

The deal

Since the election, the ANC’s national leadership has been behaving largely as if no deal was done and they alone are in charge. It has removed Zuma and has appointed an inquiry into the “state capture” of which his faction is accused. It has also replaced the boards and senior managers of state owned enterprises which were seen to aid the capture of public resources by connected people.

Ramaphosa’s first cabinet included members of the Zuma faction, but the key positions are held by his group.

This begged an obvious question: what was the pro-Zuma faction getting out of the deal? Why were they falling in line with the anti-state capture agenda which pulled the rug from under them?

North West provides the answer. At the core of the Zuma faction’s campaign, which relied on electing his ex-wife Nkosazana Dlamini-Zuma president, were the so-called Premier League, provincial premiers in three mainly rural provinces.

Mahumapelo was one but he did not ascend to national office. The other two, David Mabuza and Ace Magashule, are now deputy president (of both the ANC and the country) and ANC secretary general respectively. While there are differences between them – Mabuza struck the deal which got Ramaphosa elected – all three are regional strongmen whose power relies on controlling their provinces.

They seem to have decided not to challenge Ramaphosa’s faction on national issues. But all three are set on retaining their power base in their provinces; Mabuza and Magashule have been replaced by premiers who are likely to defer to them and Mahumapelo is determined to hold onto the North West ANC. They seem to remain strong enough in their provincial ANCs to allow them to do this.

Back to Bantustans

If they succeed, people in the cities will be largely unaffected. The battle against national state capture will continue. But those in rural areas, most of which were Bantustans under apartheid – rural dumping grounds where local power holders controlled residents on behalf of the apartheid state – will remain firmly in the grip of the patronage politics and state capture from which the cities will be at least partly free.

This will not only entrench inequality. It will keep alive the apartheid patterns which democracy was meant to end because millions of people in the former Bantustans will remain under the control of leaders who are not interested in serving them. They will be at best partly free and will continue to live in poverty.

Whether this is allowed to happen will depend less on ANC politicians, including Ramaphosa, than on citizens. The ANC national leadership is trying to intervene in North West but it has shown no interest in changing the way Free State and Mpumalanga are governed. It seems to understand the deal to mean that they cannot be touched. If Zuma’s ally Sihle Zikalala wins control of KwaZulu-Natal, he too might gain a free pass to govern that province as he pleases.

The only reason the ANC leadership is intervening in the North West is that citizens have made it clear that they want Mahumapelo and his style of governing gone. Besides the damaging street demonstrations, the ANC may lose North West to the opposition in next year’s general election.

While it has lost ground at the polls in the other Premier League provinces, the damage is not enough to persuade national leaders that they need to do anything about these areas. That would no doubt change if the ANC vote in those provinces also started dipping under 50%.

The ANC deal seems set to condemn people living where apartheid’s Bantustans once reigned to much the same sort of governance as they endured then. But they have a weapon now which they lacked then: a vote, which might yet bring them the same freedoms people in the cities enjoy.

Steven Friedman, Professor of Political Studies, University of Johannesburg

This article was originally published on The Conversation.

How South Africa should tackle the redistribution of land in urban areas

South Africa’s property regime is anchored in registered title and this can be rigid and exclusionary.
EPA/Kim Ludbrook

Land debates are reverberating across South Africa after the country’s parliament resolved to accelerate land redistribution through expropriation without compensation where necessary. Twenty four years since the advent of democracy, land remains a stark and visible symbol of dispossession and racial and income inequality.

The current wave of land reform debates is different in one key respect: there’s been an emergence of an urban angle to them. And rightly so. The majority of South Africans live in urban areas. On top of this spatial apartheid lives on in South Africa’s cities.

But genuine land reform requires a shift in the country’s approach to urban land: it can’t be seen simply in terms of its market value and its potential for profit. Land’s social and redress value must be considered.

There’s also the real possibility of the land debate being hijacked for political party or elite gains rather than a genuinely re-distributive agenda for poor and working class people. South Africans need to pay attention to the voices dominating land debates, and constantly ask: land reform for whom?

In spite of the challenges, the current moment could provide a golden opportunity to redefine the country’s approach to urban land. I spoke to Lauren Royston, who has been working on the urban land question in the research and advocacy arena for more than a quarter of a century. She recently co-authored “Untitled: Securing Land Tenure in Urban and Rural South Africa”.

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Sarita Pillay: Are we seeing a conversation about urban land reform that we’ve not had before?

Lauren Royston: I think we’re seeing an opening for a conversation about urban land reform in a way that hasn’t been present before. Urban land tends to be hidden in other urban development sectors such as housing, planning and municipal finance.

The expropriation without compensation debate might be changing that, creating an urban land focus and redistribution an urban land issue too. But a meaningful shift in the debate requires serious interrogation of key areas such as the dynamics of the property market as well as a review of how both state owned and private land can be used to accommodate urban land reform.

Sarita Pillay: Urban land in South Africa’s cities isn’t approached as an opportunity for redistribution or social justice. Good public land in cities is being sold for profit by government while land in well-located suburbs is not considered for public housing. Would you agree that the country’s provinces and city municipalities haven’t pursued brave and progressive approaches to urban land?

Lauren Royston: I do think that state land is often seen as a revenue generator. I’m not unsympathetic to that – municipalities do have big mandates and are under-funded. But isn’t it time to rethink private land? The expropriation debate gives us that opportunity.

It seems to me that occupied inner city buildings and occupied private land parcels are a prime case for a focused, programmatic expropriation approach. One that needn’t cause instability. What we need to talk
about next is how those buildings will be held. It’s my view that they should be a public or social asset, not privately owned. The country should have a debate about this.

Sarita Pillay: Expropriation can also be used by government to ensure shack settlements on private land finally have access to basic services and infrastructure. This was raised as a demand in the recent Land for Living march in Cape Town. Is this the kind of genuine urban land reform that the expropriation debate opens up?

Lauren Royston: Definitely. But the risk with expropriation is how political it has become. Despite the heated debate, it’s always been technically possible. In the urban context, the Housing Act allows for expropriation. The call for an amendment to the constitution seems premature – at least until existing provisions have been used more proactively.

Expropriation in the urban setting should focus on poor households – those earning a household income below R3 200 per month. They make up close to 50% of Johannesburg’s population. Private sector delivery doesn’t work for them.

Sarita Pillay: There seems to be a lack of public imagination and interrogation around how land is held and the ownership of land when it comes to urban land reform. You’ve written about land tenure, how should we be thinking about this in an urban context?

Lauren Royston: South Africa’s property regime is anchored in registered title and this can be rigid and exclusionary. To get into official or formal property if you’re poor, you have to enter a system of individual title deed registration via a housing subsidy project. But a significant number of subsidy properties are not on the deeds registry.

South Africa needs to consider that the problem with title may be more systematic than simply “fixing” a backlog. It needs to look into the range of tenures that exist outside the formal property system. These tenures have legal protection under a range of different post-1994 tenure laws but these rights are not registered which makes them less secure and denies access to the many benefits of registered title.

Sarita Pillay: What do you think needs to happen now?

Lauren Royston: If President Cyril Ramaphosa’s commitments are genuine, then after the 2019 elections the government needs to move beyond rhetoric and it needs to start countering the fear mongering and instability spectre. And it needs to improve capacity on land by co-opting private sector and civil society experts.

Sarita Pillay, PhD Student at South African Research Chair in Spatial Analysis and City Planning, University of the Witwatersrand

This article was originally published on The Conversation.

Why it's wrong to blame South Africa's woes on Mandela's compromises

The flaws in the political settlement that ended apartheid need urgent attention.
GCIS

If he were alive today, Nelson Mandela would probably be puzzled to find that it has become popular among South Africans frustrated with the pace of change to join former Zimbabwean president Robert Mugabe in casting him as a villain.

The charge against Mandela, who became South Africa’s first democratically elected President on May 10 24 years ago, is that he let white South Africa off the hook by bargaining a deal which left the racial minority in charge of the economy and society. His reconciliation policy, it is claimed, made whites feel good but did little for blacks.

How justified is this? Should South Africans blame Mandela for the survival of racial bias, poverty and inequality? Or does he remain an inspiration? The answer lies somewhere in between these two poles.

Before explaining why, it’s as well to warn against the tendency to see apartheid’s end as Mandela’s work alone. As he never tired of pointing out, he was part of a collective: key strategic roles were played by former president Thabo Mbeki and the country’s current leader Cyril Ramaphosa, among many others. This week 24 years ago saw the beginning of democratic government, not rule by one man.

Whether Mandela and his colleagues could have done better depends on what their critics think they should have done. If the answer is that they should have insisted on far more radical change, how were they to achieve this since the apartheid system was not defeated militarily? And how was the new order to feed its people if it frightened away the capital which remained in the white minority’s hands?

Missed opportunity

Mandela’s reconciliation message may have partly reflected his view of the world. But it was also a product of the African National Congress’ (ANC) view then that the minority retained the power to destroy the new democracy and so a compromise with it was essential.

This sometimes led to skewed priorities. Preventing a white backlash was at times taken more seriously than black opinion outside the ANC which was also not sure about the new order. But the ANC’s view that apartheid could only be ended by a compromise was, essentially, accurate. Those who continue to complain that Mandela and his colleagues settled for far too little have never said credibly how it would have been possible to get much more.

Critics are right to insist that something was missing from the settlement which made Mandela president. But the problem is not that there was too much compromise; it was that there was not enough.

The compromise which produced 1994 concentrated on changing the political order so that everyone became a citizen with equal rights. That was essential. But it left untouched an economy, society and culture which, like the political system, worked only for the few. The political bargain should have been followed by a similar negotiation on opening up the economy. It should also have tackled the biases in the places where ideas and knowledge are produced - schools and universities, for example, and those in the wider society where inherited privilege in access to health care, transport and other essentials have limited the effects of the political changes Mandela and others achieved.

This was a missed opportunity because the years leading up to the settlement which produced the 1994 democratic government saw parallel negotiation on the economy, social issues and education and culture. This could have set the stage for a bargain on change in these areas but the opportunity was ignored. This has produced the bitterness that sees Mandela as a problem, not a solution.

This flaw needs urgent attention. Unless it is addressed, South Africa will remain what it is today: angry and fractured, still trapped in many of the chains which apartheid created. Mandela and those who worked with him hoped for more – a society in which the old barriers would break down, not one in which they remain, although on new foundations. What they hoped for has not been achieved partly because they failed to find a strategy for addressing the ills apartheid created.

Building a new society

But the new society for which they hoped will not be created unless the values which they championed at the time are revived. The message that South Africans share a common humanity is not a sham. It is essential in a society which remains deeply divided. It does not mean ignoring inequalities: it makes it essential that they are tackled, but in a way which recognises what people hold in common.

The spirit of self-sacrifice and service which prompted Mandela and others to fight apartheid and seek to build a new society is equally essential in a country in which how much you own is valued more than how much you contribute, one of the many causes of corruption which continues to scar the country.

The deal over which Mandela presided was not enough to build a workable future. But the values he and those with whom he worked endorsed will need to play a core role if that future is to become reality.

Steven Friedman, Professor of Political Studies, University of Johannesburg

This article was originally published on The Conversation.

For 15 years South Africans in North West have been getting angrier. Here's why

A cement delivery truck was burnt by angry protesters against corruption and poor service delivery in South Africa.
INL/Bhekikaya Mabaso

Recent violent protests in Mahikeng in South Africa’s North West province have prompted widespread commentary about what’s behind them, as well as their significance. Protests have raged in the province for two weeks and have seen at least one person killed and millions in property damage. The North West, which lies to the west of Johannesburg and borders Botswana, has also been affected by a two-month health care services strike.

Some have attributed the protests to demands for the delivery of basic services such as housing and sanitation, including concerns about the closure of health clinics. Others have focused on democracy and corruption related issues given that the protesters have been calling for the removal of the Premier of the province, Supra Mahumapelo.

All these factors have no doubt played a part in fuelling people’s anger. But the violent protests in Mahikeng and other parts of the province beg some serious questions about the functioning and state of South Africa’s democracy. Evidence from the latest round of a nationally representative South African Social Attitudes Survey conducted by the Human Sciences Research Council provides some profound insights into how people in that part of the country see the world. Each survey round consists of a sample of 3,500 adults older than 15 years. This opinion poll (which has been conducted every year since 2003) has enabled us to track public opinion in the North West.

The survey shows that over the past 15 years people in the area have been growing disgruntled with the political leadership in the North West province. Citizens are discontented with the status quo and want meaningful change.

The survey also shows that corruption has become one of the biggest concerns for residents of the province when it featured much lower down their list of concerns 15 years ago.

Another disturbing trend the survey highlights is that a significant minority of those polled view violent protest action as an effective way to achieve change.

A trend of growing unhappiness

The survey shows that public trust in local municipal government in the North West province has dropped dramatically since 1998 – from 56% under the then Premier Popo Molefe to 18% in 2017 under Mahumapelo. The steepest drop in confidence happened after the Marikana tragedy in 2012, when 44 people died. Thirty four were shot by police during a protest at one of the mines belonging to platinum producer Lonmin.

Over the past 15 years people living in the North West Province have also become more cynical about the way democracy, political leaders and the economy have performed in the country. Last year only 14% of North West residents said they were satisfied with the way democracy was working. This was down from 67% in 2005.

The vertical lines denote the period of office of the two most recent premiers of the North West province Thandi Modise, and Supra Maphumapelo.
HSRC SASAS 2011-2017

In addition, levels of public satisfaction with water and sanitation services have declined dramatically since the early 2000s. There has also been mounting and sustained discontent when it comes to the delivery of basic services such as electricity.

People’s political priorities have also changed dramatically over the past 15 years. When asked what national challenge was the most important to them, corruption was listed by only 5% of those surveyed in 2003. But by last year this has shot up to nearly a quarter with 23% listing corruption as their top concern.

Peaceful, disruptive, violent

A survey question posed to participants in 2016 sheds some disturbing light on how people view protests. Participants were asked about the acceptability and perceived effectiveness of three types of protest action: peaceful, disruptive and violent.

A third of North West residents had a positive view of peaceful protests. And only 19% said they thought peaceful demonstration would bring about positive change. An even smaller proportion (9%) thought that disruptive non-violent forms of action were useful.

A minority – 13% – said they believed that violent protests were an effective instrument for change.

This suggests that the violent protests in the province are largely being driven by a minority who see violence as a way to getting meaningful change. The implication is that the majority of inhabitants are unlikely to condone the violence and militant protests that occurred in Mahikeng.

Dire situation

The survey data shows a dire situation. It suggests that the Mahumapelo premiership has failed to address public concerns about service delivery and the local economy.

Nor do people in the province have any faith in peaceful protest as an effective way of securing change. It is, therefore, perhaps unsurprising that there has been a flare up in violent protests.

The creeping disillusionment and loss of political effectiveness in the province is worrying. It is incumbent on the leadership of the governing ANC to ensure that discontent is heeded and that appropriate measures are taken to get the province running effectively again. In the light of this it’s appropriate that President Cyril Ramaphosa is reported to have asked the premier to “step down”.

Jare Struwig, Benjamin Roberts and Yul Derek Davids were part of the research team that produced the survey on which this article is based.

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The link to the survey in this article provides access to all the data. If readers require a more detailed analysis of the data, please contact the HSCR at datahelp@hsrc.ac.za.

Steven Gordon, ‎Post-Doctoral Research Fellow, Human Sciences Research Council and Narnia Bohler-Muller, Executive Director Africa Institute of South Africa at the Human Sciences Research Council and Adjunct Professor of Law, University of Fort Hare

This article was originally published on The Conversation.

South Africa should create a fund to compensate victims of crime

South Africa’s police face many civil claims by crime victims.
Shutterstock/Arisha Ray Singh

South Africa is plagued by crime. Violent crime, in particular, has reached epidemic proportions. The country has some of the world’s highest murder, assault and rape rates. So how does – or how should – the law respond to this problem?

One option would be to try to prevent crime from taking place in future. But available crime statistics for the last decade suggest that without a major overhaul of policing and the introduction of coordinated social responses to fighting crime this is unlikely to happen.

Another possibility, then, is to ask: now that crime has already taken place, how does the law help victims? Criminal law provides a pathway to punishment. Some victims, though, want compensation for their harm. They must rely on civil law, also known as the law of delict. This is the branch of the law that deals with the compensation of harm caused wrongfully and culpably by others.

South Africa’s legal position when it comes to crime victim compensation is unsatisfactory. In my doctoral dissertation I sought to establish whether creating a compensation fund for crime victims could be justified. I also wanted to know whether such a fund would be appropriate in the South African legal context.

I examined the current legal position and also considered the experiences of legal systems that have already introduced statutory compensation funds, such as the UK and the Netherlands. In principle, I found that providing a similar form of statutory relief for crime victims would be justified in South Africa.

The status quo

As in most other jurisdictions, crime victims in South Africa generally don’t institute civil claims against the actual perpetrators of crimes. This is because criminals are almost never in a financial position to compensate.

This has prompted a development of South African law that has produced, among other things, unwarranted financial consequences. Essentially because perpetrators cannot compensate them, crime victims have argued that the state – typically the Minister of Police – should be held vicariously liable. In these cases it’s argued that state employees (mostly police officers) culpably and wrongly caused victims’ harm, either by action or inaction. There’s also more chance of receiving compensation in a civil case against the state, since it has deeper pockets than most perpetrators.

This strategy has been remarkably successful. It has led to the considerable expansion of the state’s liability for harm arising from crime. Claims against the police and the value of these claims have risen exponentially in the last decade. This widened liability is reflected in a report that sets out the scope and impact of the significant rise in civil claims against the South African Police Service.

And, in 2017, the parliamentary portfolio committee for police indicated that the civil claims instituted against the Minister of Police in the 2015/2016 financial year amounted to R14,6 billion.

The committee warned that this high number could lead to 3000 police officials being retrenched between 2017 and 2019. This means that increased litigation and the resulting increase in state liability could actually decrease the police’s ability to prevent crime. South Africa’s law of delict therefore appears to be caught in a vicious cycle of ever-expanding state delictual liability for harm arising from crime.

Given these costs and their implications, it may be sensible to consider whether there is an alternative way of securing compensation for crime victims. One possibility would be a crime victim compensation scheme. This would involve drawing up new legislation around the law of delict.

Typically, these schemes are funded by taxpayers and take over the primary responsibility of compensating crime victims.

A justified step

Such a large-scale legislative reform of the law of delict would require justification. When the South African Law Reform Commission investigated the possibility of establishing a fund in 2004, it said:

developing a motivation for the establishment of a [statutory compensation fund] in South Africa remains incomplete, and must be completed if legislation is to be drafted, since no law should be passed without its objectives being clearly defined and costed.

It would also necessitate an affordability analysis: can South Africa afford to put such a system in place, and what would it cost?

My research responds to the commission’s finding and, after considering the current legal position in South Africa as well as the experiences of legal systems that have already introduced statutory compensation funds, I conclude that, in principle, it would be justifiable and appropriate to establish a compensation fund for crime victims in South Africa.

Bernard Wessels, Lecturer in Private Law, Stellenbosch University

This article was originally published on The Conversation.