The Withering Away of the State and New, Civilised Dispensations of Peace, Security, and Growth
Koos Malan writes on how the deterioration of <a href="https://absafricatv.com/uzbekistan-showcases-textile-products-at-international-exhibition-in-south-africa-for-the-first-time/" title="Uzbekistan showcases textile products at international exhibition in South Africa for the first time”>South Africa’s policing, prosecutorial, and governing capacity, and how public safety increasingly depends on private security, civic initiatives, and well-organised communities.
In my previous column, Enclaves and Micro-Republics, I explained how the structure of government in South Africa has already changed significantly. The three spheres of government as envisaged by the Constitution are being superseded by new practice.
This is the emergent reality of decaying government accompanied by budding enclaves and micro-republics, which are giving rise to new forms of government. In this way, a new actual Constitution is partly established in place of the supposedly supreme Constitution.
Regarding the responsibility for security and the maintenance of public order, there is an accompanying constitutional change that is at least as profound. It is also taking shape without amending the Constitution’s text. The change is silent, yet profound.
Power Imbalance asa Supposed Condition for the Maintenance of the State
Through the police and the prosecuting authority (sometimes assisted by the military), the state assumes the role of custodian of peace and public order. For that purpose, it seeks to maintain a monopoly of lawful force.
This means that the state functions on a premise that one is barely aware of in a normal peaceful dispensation: the maintenance of a perfect imbalance of power in favour of the forces that constitute the state, which are to preserve order and peace, against the opposing forces jeopardising peace and order.
But the forces that foster and maintain peace and order are, first and foremost, pre-existent of law (and not drawing the scrutiny of legal analysis). Indeed, upon close analysis, it is these pre-legal societal forces that underpin and make possible a sound legal order in the first place (and the rule of law).
Where the vast majority of people behave in a civilised and peaceful manner and refrain from harming others – they do not murder, assault, rob, steal, or rape, and generally refrain from crime – order and peace are chiefly habitually maintained. Coercive power of the state or similar coercive institution plays a minimal role. The civilising habits cultivated within and among natural communities and families, and by parenting, institutions of learning, and so on, are the primary factor safeguarding peace and public order.
This culture is the most important factor for maintaining the imbalance of power in favour of maintaining public order, peace, and the rule of law.
If such a culture is present, crime rarely occurs, and that which does is so vanishingly rare that it is easily handled by the criminal justice system – the police and the prosecuting authority.
Viewed in this way, the criminal justice system is not the first (and only) line of defence for maintaining peace and order, but only the last trench. It is engaged only where the first line of a healthy community life – a healthy culture – cannot ensure habitual compliance with the law.
Constitutions function on this assumption. That is why they have provisions about who is responsible for the last trench in the effort against violations of criminal law, but they will usually be silent about who is responsible for thefirst line of crime prevention, namely healthy community life. It is simply tacitly assumed.
With regard to the last trench, section 205(3) states that the objects of the police service are to: “prevent, combat, and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law”.
The Disruption of the Balance of Power and the Actual Constitution on Security and Order
In South Africa, however, the imbalance of power has been drastically disrupted. The scale is no longer indisputably in favour of the state as guardian of law and order. It is increasingly being challenged by disruptive forces. This is clear from:
- •The chronic and worsening dysfunction, de-professionalisation, and criminalisation of the police at the highest level. This has become especially graphic since the commencement of the Madlanga Commission on 17 September 2025. The decline of the defence force must be added to this;
- •Organised crime, which has become a phenomenal force in South Africa, as evidenced by the Madlanga Commission and which, moreover, has penetrated the police at the highest level. The phenomenon of organised crime in South Africa has been investigated in numerous studies, most recently by Dr James Myburgh. The study shows that it is becoming increasingly serious and that the battered police service is clearly not up to the task;
- •The dramatic rise of the private security industry, with about 10 000 private security companies in the country today. There are approximately 600 000 registered private security officers – three times as many as police officers. They span the full spectrum of competence and training, but for key roles, private security is generally well trained, and many security officers are equipped with firearms; and
- •The numerous security formations among the public, such as neighbourhood and farm watches, as well as vigilante groups.
The rise of non-state security has become so important that public safety is impossible without it. The public very often relies on it more than on the police. This was demonstrated again on 30 June this year when private security formations made a huge contribution to ensuring stability amid the mass action of the March and March movement. It was also the case in July 2021, when it was only thanks to private security institutions that the uprising in KwaZulu-Natal and parts of Gauteng did not assume even worse proportions.
The result of this is that, regarding the maintenance of public order and safety, the responsibility does not vest with the state as section 205(3) suggests. On the contrary, that responsibility is now, de facto, divided between the state and the non-state security sector, and the civil and business sectors, while it is actively challenged by organised crime.
State security has therefore withdrawn from many areas, the result of which is a new constitutional reality emerging in South Africa.
However, the constitutional text has not been amended and therefore misrepresents the constitution on the ground – that is, how society is actually constituted.
If the Constitution is to reliably reflect the state of the (actual) constitution, section 205 should read as follows: “The responsibility for safety and security in South Africa rests alternately, depending on their varying capabilities, on the police service, sometimes assisted by the military; private security companies; and civic and business initiatives, but is often challenged by organised and similar forms of crime.”
Due to this scenario as well as the weakening, corruption, and deprofessionalisation of the prosecuting authority, the amended provisions on prosecution (section 179) should now also read as follows: “Whenever the prosecuting authority has competent and suitable personnel, is sufficiently assisted by the police, and is under pressure from private or civil institutions, it initiates prosecutions in a competent court.”
And the Required Power Imbalance?
Where does this leave us with regard to maintaining the required power imbalance in favour of the forces that preserve order against potential disrupting forces – the power imbalance upon which the legal order and the survival of the state depend?
The answer is that the imbalance has been seriously disturbed. Crime, especially organised crime, has surged to the point where the police are hardly a formidable match for it. The situation is exacerbated by the serious deterioration of the prosecution authority.
This is precisely why the state is withering away – the African National Congress has proven itself incapable of running it.
Still Not Total Collapse – Enclaves and Micro-Republics
But despite this withering, there are many spots of newly emerging peace, order, civilisation, and growth. These are the enclaves and micro-republics, which are increasingly becoming part of the constitutional reality in our part of Africa.
In the more organised and capable enclaves and micro-republics, the state is functionally absent to a greater or lesser degree. The (lawful) violence associated with the state is likewise largely absent. And the violence due to crime, especially organised crime, is likewise largely absent.
This does not mean, however, that these enclaves and micro-republics are free from violence. There is at least the necessary threat of violence, which, as the last trench of a legal order, must always be present. It is precisely lawful violence that must keep crime out of the enclaves and micro-republics, and which is provided by formations of private and community security. This reveals how the state has not only forfeited its monopoly on violence to criminals, but also how it is losing out to lawful violence in the guise of private and civil security.
In these enclaves and micro-republics, a sound legal order prevails as explained above. Community life is conducive to peace and order, thanks, among other things, to a healthy culture and sound cultural institutions. This results in the law being habitually observed with marginal and easily manageable exceptions.
The conditions for a healthy legal order in these enclaves and micro-republics naturally involve demarcation and movement control, which can be achieved in a variety of ways. The most effective is access control in circumstances where enclaves/micro-republics are properly demarcated. Less effective, but still partly effective, are patrol vehicles, which monitor and control movement and, strictly speaking, fulfil a function similar to access control.
Thus, the new substituting constitution, in place of the retreating one, also plays out in the key field of maintaining peace and public order, and thus, amid the withering state and the fading Constitution that is losing relevance, new constitutional realities are emerging.
