The crisis surrounding President Cyril Ramaphosa’s game farm robbery ought not to distract our focus from the wider state crisis. The Zuma era operated according to norms of illegality that in fact overrode those of the Constitution and criminal law. That undermining of constitutionalism, with dominant counter norms of criminality, continues today and threatens the integrity of the state.

The character of the crisis that we face in the country today bears similar features to that which have been identified before. Under Jacob Zuma, through State Capture, state institutions and norms were bypassed, or their status undermined in order to serve the interests of the Guptas and enable them to dictate state- and state-owned entity (SOE) appointments.

This chain of communication and command also served to ensure special access to information enabling the Guptas to be at a significant advantage in applying for tenders and a range of other ways of bypassing regular procedures for their enrichment.

Much of what was done by Zuma and his allies in government, undermined legality and often diverted funds intended for the poor, whether with Nkandla, water projects in Giyani and a range of cases where others benefitted illegally from state funding.

How post-apartheid South Africa was intended to be different from what went before

The post-apartheid South African state was established on very different norms from that of apartheid. By norms I refer to a set of standards that include but are not encompassed purely by laws, but also include values and practices. Norms refer to standards or patterns of behaviour expected of specific people in particular conditions. Norms, whether in law or established practices enable us to know what to expect and have certainty in our lives.

Consequently, while racial discrimination and state violence against the oppressed was normative under apartheid, equality and respect for dignity and freedom from state violence was intended to mark the laws and wider practices in post-apartheid South Africa. That was initially done through the new Constitution, enacted in 1996 and an array of legislation and the establishment of a range of commissions and institutions in support of democratic and constitutional values.

The Zuma presidency undermines norms and in fact establishes a set of countervalues and norms that displace those of the Constitution

So widespread was law breaking or ignoring of legality under Zuma that one can speak of there being norms of the Constitution and practices of the public service - but also, the counter-norms of Jacob Zuma and his acolytes. What was more disturbing about the period is that the Zumaite norms consciously aimed at undermining the Constitution and criminal law of the state.

In a sense, as has been pointed out in writings on State Capture, a parallel state was created and directed by the Gupta family acting through their influence on Zuma. South Africa has a transformative Constitution directed at freeing all the people of South Africa not only in their personal freedom from violence and oppression, but also transforming their lives for the better.

On the one hand, South Africa had this transformative Constitution and norms whereby officers of the state were under the obligation to advance achievement of transformative goals, to emancipate the people of South Africa. But the Zuma era saw a countervailing set of norms to which, hierarchically, those of the state were subordinated.

It is true that the courts and Chapter Nine institutions in general still played a role in preventing the undermining of transformative goals. But any state depends on officials, either political leaders or civil servants, to give life to the spirit of the Constitution. And insofar as the Zuma State Capture project was directed not only at stealing but also undermining state functioning, it operated according to a set of norms that competed with those enunciated by the Constitution and the courts. And in fact, it often managed to subordinate the law of the land to that of the writ of the Guptas and Zuma.

Cyril Ramaphosa presidency - continuity or rupture?

This is what Cyril Ramaphosa as president inherited and undertook to undo and remedy through a return to constitutionalism and effective governance. But insofar as this may have been declared as a goal, there does not seem to have been a rupture with central features of the Zuma period. These features were not dependent on the presence of the Gupta family since there were many others waiting in the wings for an opportunity to steal from the state. In addition, Ramaphosa made no serious attempt to uproot perpetrators of Zumaism from high office and end their practices.

In short, there has been substantial continuity between the Zuma and post-Zuma era. This is not to suggest that nothing changed in the Ramaphosa presidency, but it serves little purpose to do a chart comparing what was changed or was not changed.

It is beyond question that widespread corruption has endured, and extensive state violence continues to be perpetrated by the police and defence force when deployed as in the lockdowns (for which very few if any people have been held responsible for assaults or murders that were often captured on video). Many departments of state continue to be dysfunctional and fail to perform their key duties, and remain vulnerable to fraud, as was evidenced in the purchasing of material to deal with Covid-19.

In many respects, far from the Ramaphosa period comprising a rupture with the Zuma period, it has primarily constituted continuity – in personnel and practices. Not only do very many if not most key Zuma leaders remain leaders, but the practices in the Ramaphosa period replicate the disrespect for legality (which embodies the freedom of all under the current Constitution) of the Zuma period.

The cumulative effect of these features persisting for some time is that we need to characterise them differently. Admittedly the crisis of state functionality or capacity, of prevailing lawlessness, have the same components that have been identified for conventional crises in the past. But the malpractices have attained a level of continuity as practices to be described as normative.

More than that it may mean that the ongoing practice of departing from or undermining norms has itself become normative and acting outside the law has become a norm. Acting illegally in the case of some state office bearers or state institutions may have become hierarchically normative as opposed to the stipulated norms for their office, including to act legally and constitutionally, according to specific rules.

If the norms have been turned upside down and “wrong is right” we cannot address the problems of the present at the level of a change of leadership and a change of government. Whoever leads as an individual or an organisation enters a system where constitutionalism coexists with normative illegality.

My understanding is that we are facing a systemic crisis, a crisis of functionality of the South African state. It may be akin to what some call a “failed state”, but I prefer not to use the term, since it is not clearly defined and is often abused to attack states that experience legitimate difficulties.

The crisis of the South African state has several components, which I outline briefly.

In the first place, although key institutions of the state, like the judiciary, and most of the Chapter Nine institutions function well and have been identified with defending constitutionalism and democratic life, that demand for respect for legality, constitutionalism and the basic norms of the social and political order do not enjoy respect among the political leaders of South Africa - not only the ANC, but also the EFF and to some extent the DA at local level and new parties like the Patriotic Alliance.  

More important for this characterisation, some of the key institutions of the state, notably the police and other security forces and other organs of state are consistently failing to perform duties under the Constitution or legislation and regulations applicable to their sphere of operation. It is almost a professional pattern to use excessive force.

It is not only the security forces, but also sections of the state whose job it is to provide welfare provisions to the people who are not fulfilling their job in the dispensing of grants, in the provision of adequate healthcare in the provision of hospitals of an order that can meet the basic health care needs of patients. Often there is no water or electricity, compromising conditions for treatment.

Organised and private initiatives to undermine state functioning

Coalescing with undermining or sabotaging legality and constitutional norms from within, is growing destruction of state infrastructure and other resources through sabotage and theft by unknown forces. At the same time as the state is failing to provide many of the services stipulated in their core business, there are repeated acts of destruction of institutions including healthcare institutions, railway lines and power and water supplies. Some, as with Eskom, are known to be acts of sabotage and if the intelligence service were fit for purpose, still other acts may also be so defined.

In the case of theft of cables, it may be depoliticised criminality, enabled by the breakdown of security systems. Where an institution is failing or having difficulty meeting its core duties this performance is also being undermined by illegal acts of a criminal or political kind. That combination is part of the definition of the systemic crisis and of the crisis of functionality of the institutions of the state.

Clearly, there are very few indications of the situation returning towards normal functionality or acceptable levels of functionality. It was found to be acceptable for key offices of the Home Affairs Department to be unavailable to the public for over two years. At the same time, people who were not able to access these facilities to clarify and regularise their refugee status were being kicked out of the country.

We have situations where police are completely unavailable to sections of the public when crimes have been committed, as indicated in the murder of Abahlali baseMjondolo people, now numbering 23. The most recent murder occurred 500 meters from the Cato Manor police station and the police did not turn up, despite being told of the murder.

In evidence that has been presented in the Senzo Meyiwa murder case, the way in which the police investigated the murder scene did not conform with norms that are applicable for sealing off a crime scene before allowing people to enter. The crime scene is very likely to be found to have been contaminated.

This indifference and lack of police professionalism (with some exceptions) is known to government and has been allowed to persist for some years and it seems to be built into the patterns of performance of policing duties.

Apartheid oppression and post-apartheid oppression

The country has been legally free of apartheid since 1994. But in some respects, it continues as before or worse, with the category of people referred to as “the oppressed” under apartheid remaining oppressed today by state violence and failure to meet their constitutional right to have their basic needs met.

The reason why I think this is an extraordinary crisis, is that it is part of a general decline and perhaps potential disintegration or collapse of the South African state.

The question, however, is that even if the judiciary and the Chapter Nine institutions make findings that are binding on leaders in government, we no longer have leaders in government who can be trusted to abide by the law of the country, abide by the rulings of the highest courts of the land.

In truth the crisis - or the most significant crisis - is not Cyril Ramaphosa’s alleged wrongdoings but what preceded it, what the farm scandal is bringing home, that threatens South Africa’s democracy and statehood

Urgent situation, but no speedy remedy available

It is a situation where there is a sense of urgency, but the urgency cannot be matched with a solution that is speedily available. It is necessary for all of us, wherever we are located, to find ways of building an organised force that can drive the crooks out of office. There needs to be extensive consultation over the future, which is likely to be one without ANC dominance and possibly with the organisation’s demise.

It is important that talks begin involving a range of sectors of society: popular movements, political parties, professional organisations, NGOs, business - big and small - trade unions with employed and unemployed workers, faith-based organisations and the multiple bodies that have sprung up to step in where the state has failed to help those who are starving. Together a solution needs to be developed.

Raymond Suttner is an emeritus professor at the University of South Africa. He served lengthy periods in prison and house arrest for underground and public anti-apartheid activities. His writings cover contemporary politics, history, and social questions, especially issues relating to identities, violence, gender and sexualities. His twitter handle is @raymondsuttner.