1 Etienne G. Krug, et al. (eds.), World Report on Violence and Health, WHO, Geneva, 2002, p. 215.

2 Duncan, Norman, ‘Understanding collective violence in apartheid and post-apartheid South Africa’, in African Safety Promotion: A Journal of Injury and Violence Prevention, Vol. 3, No. 1, 2005, p. 7Google Scholar. In a South African context, the term ‘in-group’ refers to the white minority population.

3 Address by State President F. W. de Klerk at the opening of the Second Session of the Ninth Parliament of the Republic of South Africa, 2 February 1990. The liberation movements included the Pan-African Congress and the South African Communist Party.

4 Apartheid was a comprehensive system of racial segregation enforced by the National Party government in South Africa during the period from 1948 to 26 April 1994. This system was used by the white minority to exercise domination over a non-white majority inclusive of Africans, coloureds, and Indians.

5 Although the concept of apartheid was developed and implemented by the ruling National Party after gaining power in 1948, white domination had been a key feature of South Africa since its creation as a state in 1910. White rule and African disenfranchisement thus remained unchanged and were seemingly the pre-conditions for, and not the results of, apartheid. The particular contribution of the Nationalists post-1948 was the formalization, consolidation, and extension of the inconsistent and often ad hoc racist laws, customs, and practices that they inherited, and the elevation of white domination to an official ideology.

6 The term ‘white’ included all persons of Afrikaner or English origin, Germans, and Portuguese. Coloureds were referred to as ‘mixed race’. ‘Indian’ referred to descendants of indentured servants brought from the Indian subcontinent by the British to work in the sugar plantations in Natal. ‘African’ referred to persons solely of African ancestry. The Africans were later divided into ten ethnically based ‘national units’: Tswana, North Sotho, Zulu, South Sotho, Swazi, Xhosa (the Xhosa people were divided into two groups), Ndebele, Venda, and Tsonga.

7 Homelands, ten in all, were assigned to each of the tribal groups, namely Lebowa, Qwa-Qwa, Bophuthatswana, KwaZulu, KaNgwane, Gazankulu, Venda, Ciskei, Transkei, and KwaNdebele.

8 Jenkins, Daisy, ‘From apartheid to majority rule: a glimpse into South Africa's journey towards democracy’, in Arizona Journal of International and Comparative Law, Vol. 13, No. 3, Fall 1996, p. 471Google Scholar.

9 Ibid. Apartheid marginalized Africans, keeping them from participating freely in society.

10 Ibid., p. 472.

11 Ibid. The state granted its law enforcement agencies powers that were not subject to the rule of law. The law enforcement agencies also disregarded the procedural directives of the due process of law.

12 Some of those laws were the Population Registration Act of 1950 (which formed the basis for the social, political, and economic repression of all people who were not classified as white); the Reservation of Separate Amenities Act of 1953 (which granted whites exclusive use of the best public amenities); the Group Areas Act No. 41 of 1950 (arguably a form of collective punishment, whereby people were banished from their homes to ghettos and homelands); the Prohibition of Mixed Marriages Act No 55 of 1949; and the Extension of University Education Act No. 45 of 1959 (which prevented Africans from attending national universities).

13 The city of Johannesburg was founded in 1886. It was a thriving mining city that, by 1920, had an estimated 200,000 African migrant workers.

14 African students in Soweto (South Western Townships) protested against the Afrikaans Medium Decree of 1974, which forced all African schools to use Afrikaans and English as a medium of instruction. This form of education was described by many as a kind of ‘gutter education’.

15 This parliamentary system was introduced by the then President P. W. Botha. Through a constitutional amendment, it granted Indians and coloureds a greater level of (powerless) political participation in matters such as education and health; the amendment, however, did not allow for the inclusion of a Bill of Rights. It was argued that such an inclusion would have meant that repressive laws such as the 1972 Internal Security Act had to be revoked. The Internal Security Act gave police powers to detain and arrest people without trial for a renewable period of ninety days. The parliamentary system included the House of Assembly (white representatives), the House of Representatives (coloured representatives), and the House of Delegates (Indian representatives). No representation was available to Africans, as it was argued that Africans already had political rights in their respective homelands (see note 7 above).

16 N. Duncan, above note 2, p. 10.

17 The TRC was established by means of the Promotion of National Unity and Reconciliation Act 34 of 1995.

18 Truth and Reconciliation Commission Report, Vol. 1, ‘Executive Summary’, available at: http://www.justice.gov.za/trc/report/index.htm (last visited 24 June 2010).

19 N. Duncan, above note 2, p. 16.

20 Interim Constitution of the Republic of South Africa, Act 200 of 1993, ch. 15, available at: http://www.info.gov.za/documents/constitution/93cons.htm#CHAP15 (last visited 24 June 2010).

21 N. Duncan, above note 2, p. 17.

22 Ole Bubenzer, Post-TRC Prosecutions in South Africa: Accountability for Political Crimes after the Truth and Reconciliation Commission's Amnesty Process, Nijhoff Publishers, Leiden, 2009, pp. 168ff.

23 Constitution of the Republic of South Africa, Act 108 of 1996, ch. 2, section 7, available at: http://www.info.gov.za/documents/constitution/1996/index.htm (last visited 24 June 2010).

24 O. Bubenzer, above note 22, p. 169; see also Constitutional Court of South Africa, S v. Basson, Case No. CCT 30/3, 10 March 2004, para. 37.

25 O. Bubenzer, above note 22, p. 169.

26 The region is collectively referred to as the Witwatersrand.

27 Kynoch, Gary, ‘Urban violence in colonial Africa: a case for South African exceptionalism’, in Journal of Southern African Studies, Vol. 34, No. 3, 2008, p. 631CrossRefGoogle Scholar.

28 Ibid.

29 The leader of the Ninevites was Mzuzephi Mathebula (later also known as Jan Note, or Nongozola).

30 Charles van Onselen, The Small Matter of a Horse: The Life of ‘Nongozola’ Mathebula 1867–1948, Raven Press, Johannesburg, 1985.

31 Lucille Davie, ‘Nongozola: king of the Ninevites’, January 2008, available at: www.joburg.org.za/content/view/2049/168 (last visited 24 June 2010). The gang was called the Ninevites or ‘Umkozi Wezintaba’ (Regiment of the Hills).

32 van Onselen, Charles, Studies in the Social and Economic History of the Witwatersrand 1886–1914, Vol. 2, New Nineveh, Raven Press, Johannesburg, 1982, p. 195Google Scholar.

33 The Anglo-Boer War (also known as the Second Boer War and the South African War) was fought from 11 October 1899 to May 1902 between the British Empire and the two independent Boer republics, the South African Republic (Transvaal Republic) and the Orange Free State.

34 G. Kynoch, above note 27.

35 Ibid.

36 During the 1930s and 1940s, the Isitshozi gradually started to disband. Yet that particular gang played an important role in the birth of the ‘Marashea’, which subsequently became the most notorious gang in Johannesburg in the late 1940s.

37 G. Kynoch, above note 27, p. 632.

38 They included the Blue Nines, the Msomi, and the Spoilers.

39 G. Kynoch, above note 27, p. 632.

40 Ibid., p. 364.

41 District Six is so named because in 1867 it became the sixth municipal district of Cape Town. By the turn of the twentieth century, it was a lively community made up of former slaves, artisans, merchants, and other immigrants, as well as Malay people brought to South Africa by the Dutch East India Company during its administration of the Cape Colony. After World War II, District Six was fairly cosmopolitan, comprising coloured Muslims and African Xhosa residents, as well as a small number of Afrikaners and Indians. Under the Group Areas Act 41 of 1950 it was formally declared a whites-only district in 1966. Forced removals started in 1968.

42 G. Kynoch, above note 27.

43 The Cape Flats is so called because of its flat typography and its geographical location south-east of the central business district of Cape Town. The Group Areas Act 41 of 1950 forced the coloured community to move away from the central and western suburbs of Cape Town to the Cape Flats and other districts.

44 André Standing, The social contradictions of organized crime in the Cape Flats, Institute for Security Studies, Paper 74, June 2003, p. 6. In 1994, the Hard Livings and the Americans (see also note 48 below) were the two biggest gangs in the Cape Flats, with an estimated membership of between 3,000 and 10,000 respectively.

45 Irvine Kinnes, Structural changes and growth in gang activities, Monograph No. 48, Institute for Security Studies, June 2000, available at: http://www.iss.co.za/pubs/MONOGRAPHS/No48/Structure.html (last visited 24 June 2010).

46 Ibid.

47 A. Standing, above note 44. Negotiations on the creation of a Truth and Reconciliation Commission were well under way in 1993, and amnesty and indemnity from prosecution were high on the agenda.

48 This name is not to be confused with the nationals of the United States of America.

49 N. Duncan, above note 2, p. 11. This was particularly the case in the Cape Flats, KwaZulu-Natal, and Gauteng.

50 Colin Knox and Pádraic Quirk, Peace Building in Northern Ireland, Israel and South Africa: Transition, Transformation and Reconciliation, Palgrave Macmillan, Basingstoke, 2000, pp. 153–154.

51 Kynoch, Gary, ‘From the Ninevites to the Hard Livings gang: township gangsters and urban violence in twentieth-century South Africa’, in African Studies, Vol. 58, No. 1, 1999, p. 70CrossRefGoogle Scholar.

52 Care must be taken not to classify the violent conflict between the African National Congress (ANC) and the Inkatha Freedom Party (IFP) as an ethnic conflict, despite the fact that the ANC is predominantly Xhosa whereas the IFP has predominantly Zulu followers, although some sporadic clashes between the two parties were ethnic-based, especially fighting on the Reef. Interestingly enough, in May 2009 the ANC chose Jacob Zuma, a Zulu, to be the President of the Republic of South Africa.

53 One of these clashes led to the killing of respected United Democratic Front leader Victoria Mxenge in 1985.

54 Mosoeta, Sarah, ‘Compromised communities and re-emerging civic engagement in Mpumalanga Township, Durban, KwaZulu-Natal’, in Journal of Southern African Studies, Vol. 31, No. 4, December 2005, p. 860Google Scholar.

55 G. Kynoch, above note 51, p. 75.

56 The Commission of Inquiry regarding the Prevention of Public Violence and Intimidation (commonly known as the Goldstone Commission) was established under the Prevention of Public Violence and Intimidation Act of 1991. The Commission was tasked with investigating and exposing the background and reasons for violence in order to reduce the incidence of violence and intimidation.

57 These recommendations are found in Chapter 6 of the National Peace Accord, available at: http://www.incore.ulst.ac.uk/services/cds/agreements/pdf/sa4.pdf (last visited 24 June 2010).

58 Bilkis Omar, ‘Crowd control: can our public order police still deliver?’, in South African Crime Quarterly, No. 15, 2006, p. 8.

59 Crossroads is situated near Cape Town International Airport and was affected by numerous violent protests during the apartheid era.

60 Nyanga is one of the oldest townships in Cape Town, originally established as a result of the migrant labour system, and has a very high prevalence of crime.

61 The Kempton Park World Trade Centre was the venue where multi-party negotiations were taking place. The negotiations were strongly opposed by right-wing parties (including the notorious Afrikaner Weerstandsbeweging, commonly known as the AWB).

62 Durington, Mathew, ‘Suburban fear, media and gated communities in Durban, South Africa’, in Home Cultures, Vol. 6, No. 1, 2009, p. 77CrossRefGoogle Scholar.

63 For the ten homelands created by the apartheid government, see above note 7.

64 Martin Schönteich and Antoinette Louw, Crime in South Africa: a country and cities profile, Occasional Paper No. 49, Crime and Justice Programme, Institute for Security Studies, Pretoria, 2001, available at: http://www.iss.co.za/pubs/Papers/49/Paper49.html (last visited 24 June 2010).

65 Ibid.

66 Rob Boon, South Africa: country profile on drugs and crime 2002, United Nations Office on Drugs and Crime, 2002, p. 55, available at: http://www.unodc.org/pdf/southafrica/country_profile_southafrica.pdf (last visited 24 June 2010).

67 It is interesting to note that the Western Cape and Gauteng had an overall crime rate higher than 8,000 reported incidents per 100,000 during the 2001/2002 period. For a detailed discussion on this, see M. Schönteich and A. Louw, above note 64.

68 Crime Information Management – South African Police Service, 2009, ‘Crime in the RSA from April to March: 2003/2004–2008/2009’, available at: http://www.iss.co.za/uploads/0909crimetotals.pdf (last visited 24 June 2010).

69 Statistics show 62,689 recorded drug-related incidents in the 2003/2004 period, rising steadily per annum to 117,172 in 2008/2009.

70 Hough, Mike, ‘Urban terror in South Africa: a new wave?’, in Terrorism and Political Violence, Vol. 12, No. 2, 2000, pp. 67–75CrossRefGoogle Scholar.

71 Ian Evans, ‘Shoot the bastards … and shoot to kill: South African minister tells police to show criminals no mercy’, in Mail Online, 11 April 2008, available at: http://www.dailymail.co.uk/news/article-558689/Shoot-bastards--shoot-kill-South-African-minister-tells-police-criminals-mercy.html (last visited 24 June 2010).

72 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the 8th UN Congress on the Prevention of Crime and the Treatment of Offenders, September 1990. See in particular Principles 9 and 10.

73 Act 51 of 1977 as amended.

74 See Constitutional Court of South Africa, Ex Parte Minister of Safety and Security and Others: In Re S v. Walters and Another, Case No. CCT 28/01, 21 May 2002.

75 Judge Kriegler summarized the main points as: (a) the purpose of arrest is to bring before court for trial persons suspected of having committed offences; (b) arrest is not always the only means of achieving this purpose, nor always the best; (c) arrest may never be used to punish a suspect; (d) where arrest is called for, force may be used only where it is necessary to carry out the arrest; (e) where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used; (f) in deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed – the force being proportional in all these circumstances; (g) shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only; (h) ordinarily shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later; (i) these limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of another person. See p. 643 of the judgment.

76 The parts highlighted in italics below are the proposed amendments to the current section 49. The proposal is that those highlighted parts be removed from the current section 49.

77 Makubetse Sekhonyane and Jackie Dugard, ‘A violent legacy: the taxi industry and government at loggerheads’, in South African Crime Quarterly, No 10, December 2004, p. 14.

78 Ibid.

79 The two predominant associations emerging at the time were the South African Long Distance Taxi Association (SALDTA) and the South African Black Taxi Association (SABTA). Affiliations to these associations also spawned later associations. Examples of such affiliations are ATA (the Alex Taxi Association, affiliated to SABTA) and ARMSTA (the Alex-Randburg-Midrand-Sandton Taxi Association, affiliated to SALDTA). A classic example of a taxi war between two rival organizations, ATA and ARMSTA, lasted from 1987 to 1994 and caused many deaths and injuries.

80 M. Sekhonyane and J. Dugard, above note 77, p. 15.

81 Ibid., p. 16.

82 The National Taxi Task Team was disbanded in 1998.

83 M. Sekhonyane and J. Dugard, above note 77, p. 16.

84 Act No. 22 of 2000.

85 The purpose of the scheme was to replace the fifteen-seater minibuses with eighteen- and thirty-five-seater minibuses.

86 The Taxi Recapitalization Programme (TRP) was an intervention by the South African government to bring about safe, effective, reliable, affordable, and accessible taxi operations by introducing new taxi vehicles designed to undertake public transport functions in the taxi industry.

87 Untitled article written by David Masengo and Themba Gadebe, 13 July 2007, available at: http://www.sa2010.gov.za/node/861 (last visited 24 June 2010).

88 South African Press Association, ‘BRT shooting victim dies’, 3 May 2010, available at: http://www.news24.com/SouthAfrica/News/BRT-shooting-victim-dies-20100503 (last visited 24 June 2010).

89 The negotiations between the South African National Taxi Association Council (SANTACO) and the government are ongoing. SANTACO (founded in September 2001) remains adamant that the taxi industry is to own the BRTS. This is not what the government has envisaged.

90 Compact Oxford Dictionary of Current English, 3rd edition, June 2008, available at: http://www.askoxford.com/dictionaries/compact_oed/?view=uk (last visited 24 June 2010).

91 The types of skills include those of medical doctors, scientists, engineers, and academics.

92 This category of persons includes Mozambican mineworkers, Zimbabwean mathematicians, and thousands of foreign university students.

93 Adopted by the United General Assembly on 16 December 1966, entered into force on 23 March 1976. At October 2009, the ICCPR had 72 signatories and 165 states parties.

94 Adopted by the United Nations General Assembly on 16 December 1966, entered into force on 3 January 1976. At December 2008, the ICESCR had 160 states parties.

95 Adopted by the United Nations General Assembly on 21 December 1965, entered into force on 4 January 1969. At October 2009, the ICERD had 85 signatories and 173 states parties.

96 Approved at a special United Nations conference on 28 July 1951, entered into force on 22 April 1954. At 1 October 2008, the Convention had 144 states parties. A detailed analysis of its geographical scope of application goes beyond the ambit of this article.

97 Adopted by the United Nations General Assembly on 16 December 1966, entered into force on 4 October 1967. At 1 October 2008, the Protocol had 144 states parties.

98 The Refugees Act came into effect on 1 April 2000.

99 The Immigration Act came into effect in 2003. However, immigration regulations were not published until 2004.

100 Xenophobic violence prior to 1995 will not be discussed in this article.

101 Human Rights Watch, Prohibited Persons: Abuse of Undocumented Migrants, Asylum-Seekers, and Refugees in South Africa, New York etc., March 1998, part VI: ‘Xenophobia and attacks against migrants’, available at: http://www.hrw.org/legacy/reports98/sareport/ (last visited 24 June 2010).

102 Ibid.

103 Nahla Valji, ‘Creating the nation: the rise of violent xenophobia in the new South Africa’, unpublished Master's Thesis, York University, July 2003, available at: http://www.csvr.org.za/docs/foreigners/riseofviolent.pdf (last visited 24 June 2010).

104 South Africa has a huge income disparity in both social and economic terms. According to the UN Development Programme in 2009, South Africa was ranked 129 out of 194 countries in terms of the Gross National Income coefficient, which is a measure of income inequality. See updated report available at: http://hdrstats.undp.org/eng/indicators/147.html (last visited 19 July 2010).

105 ‘Xenophobic attacks: seven die in one month’, in Independent Online News, 2 August 2000, available at: http://www.iol.co.za/index.php?click_id=13&set_id=1&art_id=ct20000802102508479X510381 (last visited 24 June 2010).

106 Ibid.

107 Baldwin Ndaba, ‘Raging mob evicts Zimbabweans, burns home’, in Independent Online News, 21 October 2001, available at: http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=ct200110212058176Z5321926 (last visited 24 June 2010).

108 Sivuyile Mangxamba, ‘Somalis turn to HRC as murder toll soars’, in Independent Online News, 25 August 2006, available at: http://www.iol.co.za/index.php?sf=18&set_id=1&click_id=13&art_id=vn20060825131506666C924904 (last visited 24 June 2010).

109 Ibid.

110 See below for a discussion of this point.

111 ‘Shack’ is the term used to denote an informal dwelling in the townships.

112 ‘Xenophobic attacks special report’, in Sowetan Online, available at: http://www.sowetan.co.za/News/Article.aspx?id=%769120 (last visited 24 June 2010). These attacks left thousands homeless.

113 ‘South African mob kills migrants’, in BBC News Online, 12 May 2008, available at: http://news.bbc.co.uk/2/hi/africa/7396868.stm (last visited 24 June 2010).

114 Andrej Mahecic, UNHCR condemns xenophobic violence in Western Cape, Briefing Notes, UNHCR, Geneva, 20 November 2009, available at: http://www.unhcr.org/4b06744f9.html (last visited 24 June 2010).

115 Ibid.

116 This has also been referred to as South African exceptionalism.

117 Zondi, Siphamandla, ‘Xenophobic attacks: towards an understanding of violence against African immigrants in South Africa’, in Africa Insight, Vol. 38, No. 2, September 2008, p. 29Google Scholar.

118 Ibid.

119 Ibid.

120 The South African Human Rights Commission (SAHRC) was inaugurated in October 1995 as an independent national institution. It draws its mandate from the South African Constitution through the South African Human Rights Commission Act of 1994. The SAHRC is tasked with monitoring violations of human rights and seeks to redress such violations, both proactively and via complaints brought before it. The public statement is available at: http://www.info.gov.za/speeches/2008/08052910451010.htm (last visited 24 June 2010).

121 Ibid.

122 See e.g. the recommendations made by the Human Sciences Research Council (HSRC) in its report Citizenship, violence and xenophobia in South Africa: perceptions from South African communities, June 2008, available at: http://www.hsrc.ac.za/Document-2807.phtml (last visited 24 June 2010). It is a state-sponsored body that was given two weeks to study the causes of xenophobic violence and to then make its recommendations.

123 Sharp, John, ‘“Fortress SA”: xenophobic violence in South Africa’, in Anthropology Today, Vol. 2, No. 4, August 2008, p. 1CrossRefGoogle Scholar.

124 Ibid.

125 Ibid.

126 Vision 2014 is aimed at eradicating poverty and underdevelopment.

127 Monson, Tamlyn and Misago, Jean-Pierre, ‘Why history has repeated itself: the security risks of structural xenophobia’, in South African Crime Quarterly, Vol. 29, September 2009, p. 25Google Scholar.

128 Ibid., p. 26.

129 Ibid. The South African armed forces were deployed to address the disorder, but by then twenty-four people had already been killed and 24,000 were reported to have been displaced.

130 Ibid.

131 Ibid., p. 29.

132 Ibid.

133 The Consortium for Refugees and Migrants in South Africa (CorMSA) was formally known as the National Consortium for Refugees. It is a non-profit organization mandated to promote and protect refugee and migrant rights. This involves strengthening the partnerships between refugee and migrant service providers to provide improved co-ordination of activities, including the development of working relationships with other concerned organizations to provide an effective forum for advocacy and action. The Consortium liaises with government and other stakeholders to keep them informed of the views of its members. Its membership includes Lawyers for Human Rights, Amnesty International, and the South African Red Cross Society.

134 See CorMSA newsletter, Edition 13, 24 March 2009, available at: http://www.cormsa.org.za/news (last visited 24 June 2010). The Consortium has also been instrumental is setting up paralegal advice centres in the regions most affected by the attacks.

135 Ibid.

136 See Lawyers for Human Rights (LHR), LHR challenges unlawful detention in Musina, media release, 9 February 2009, available at: http://www.lhr.org.za/news/2009/lhr-challenges-unlawful-detention-in-musina (last visited 24 June 2010); see also North Gauteng High Court, Lawyers for Human Rights v. Minister of Safety and Security and 17 other Respondents, Case No. 5824/2009, Judgment, 15 May 2009, available at: http://www.saflii.org/za/cases/ZAGPPHC/2009/57.html (last visited 24 June 2010).

137 LHR, above note 136.

138 Ibid.

139 Constitution of the Republic of South Africa, Act 108 of 1996. The Constitution, which was approved by the Constitutional Court on 4 December 1996 and took effect on 4 February 1997, is the supreme law of the land, and no other law or government action can supersede its provisions. South Africa's Constitution is one of the most progressive in the world and enjoys high acclaim internationally.

140 The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 also prohibits forms of racism and sexism in South Africa.

141 T. Monson and J.-P. Misago, above note 127, p. 30.

142 The city of Durban, for example, stated clearly that it was not the city's responsibility to render the humanitarian assistance – provincial government had to declare a provincial disaster, and this declaration was not forthcoming.

143 T. Monson and J.-P. Misago, above note 127, p. 31.

144 Ibid., emphasis added.

145 Archbishop Desmond Tutu is a Nobel Peace Prize laureate. This quotation is available at: http://www.spiritualityandpractice.com/teachers/teachers.php?id=239&g=1 (last visited 24 June 2010).