The case against the instigators

Minutes after noon on July 14, a group of looters armed with a forklift breached the walls of an industrial equipment company in Westmead, Durban. Taking their time, they spray-painted "Ramaphosa" in red on one wall and "Zuma", in white, on another, says the owner. A sheep was slaughtered and roasted before they made off with everything from tools and compressors to fridges and fans.

Days later, President Cyril Ramaphosa warned that SA’s democracy was under threat. The week of violence, he said, was part of an attempted insurrection.

The authorities were overwhelmed. The crucial N3 route was closed, services in parts of Gauteng and KwaZulu-Natal (KZN) were disrupted and soldiers were deployed to support the police. Special directions were issued to ensure the courts could handle the influx of cases.

Yet the state’s biggest challenge lies ahead: to hold accountable those responsible for the unrest — and, crucially, to bring to book those who pulled the strings.

Dean Gillespie, an advocate who has worked for SA’s defence department and the UN mission in South Sudan, believes the mayhem was orchestrated with the help of people with military expertise. Gillespie, a director of the strategic planning consultancy Krino International, cites "excellent planning, high levels of secrecy, and utilising social media to expertly direct and co-ordinate the attacks".

According to Lizette Lancaster, manager of the Institute for Security Studies’ crime & justice hub, similar tactics were on display in the different areas affected. "Anecdotal evidence suggests that, in many cases, a small mobile group from outside the area often tried to mobilise locals or tried to ignite looting by torching shops," she says.

The organised nature of the attacks has led investigators to consider more than just charges of public violence. Last week Bruce Nimmerhoudt, the Patriotic Alliance’s West Rand mayoral candidate, became the first person to be charged under the Terrorist & Related Activities Act.

Jodi Meyer, a criminal law attorney at BDK Attorneys, says the events in July fit the description of "terrorist activity" laid out in the act:

• "The systematic, repeated or arbitrary use of violence" (more than 200 were killed and scores injured);
• Exposing the public to "any dangerous, hazardous, radioactive or harmful substance" (consider the arson attack on the Cornubia chemicals warehouse);
• Damage or destruction of property;
• Disruption of essential service, including telecoms or financial services (community radio stations were destroyed, cellphone base stations knocked out of service, and 1,400 ATMs and 300 bank and post office branches damaged);
• Causing "any major economic loss" (150,000 jobs at risk and an estimated R50bn in damage); and
• Inducing "feelings of terror, fear or panic in a civilian population".

The act could apply, too, to any person who "induces, incites, instigates, instructs or commands … another person to commit an offence".

But prosecuting such cases is difficult, says Meyer, as the state has to convince a court that the crimes were committed to advance a "political, religious, ideological or philosophical" cause.

In other words, the state would have to prove intent, says Sithuthukile Mkhize, head of civil and political justice at Wits University’s centre for applied legal studies — which means proving that the accused could have reasonably known that acts of terrorism would be committed, she adds.

But Meyer and Mkhize agree the state can also rely on alternative charges — trespassing, theft or even contravening the lockdown regulations — to ensure convictions.

While police denied a request for an interview, the Hawks have confirmed investigators are looking at a range of charges. The National Prosecuting Authority (NPA), for its part, says it is not willing to comment on ongoing investigations.

As it stands, prosecutors have sorted the more than 3,000 suspects into four categories: those who participated in looting, those found in possession of stolen goods, those stealing in large quantities in an organised manner and those inciting public violence.

Senior members of the priority crimes litigation unit will handle the latter two categories, according to NPA boss Shamila Batohi. "Looking at the higher-level perpetrators requires us to really put together the best skills we have," she recently told parliament’s portfolio committee for justice.

Concerningly, the NPA has already said some police statements are inadequate. And Mkhize warns that if cases proceed without sufficient evidence, defendants could apply for a complete discharge.

But there are further concerns. Defence analyst Helmoed-Römer Heitman, for example, notes that the years-long hollowing out of law enforcement agencies could mean some officials are hesitant to act against those involved and could give suspects advance warning or have dockets "disappear".

While Batohi has acknowledged the politicised environment in which the NPA is working and expressed concern over the possibility of "compromised individuals" being involved in the investigations, she has insisted on the authority’s independence and said it will only "follow the evidence".

Part of ensuring accountability, says Gillespie, is taking action against those who committed the looting, as well as those who failed to respond. To that end, he believes the state should transform its security structures "to reflect a less politicised and more professional leadership".