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Seeking justice in an insecure world

Musa Risimati


My interest in popular understandings of courts and prisons, and people’s ideas about the role of traditional medicine (muthi*) and corruption in changing the course of justice, was prompted by the murder of a young man called Hlengani. This murder took place in Giyani, a small town in north-eastern South Africa, in 2016. When Hlengani’s murderers were released on bail the whole community went on strike and wanted to take matters into their own hands since they felt that the justice system had failed them. Officially and legally, bail has nothing to do with whether somebody is guilty or not. Bail is merely the temporary release of someone who is awaiting trial. However, as I found out during my research stay in Giyani, given how people talk about how the world of the law looks from their everyday perspective, the community assumed that the murderers’ release on bail meant that they were not guilty. Legal procedural concepts and phrases such as ‘on-going investigations’ and the ‘rights of the accused not to be detained without enough evidence’ were not taken into consideration here. What mattered for the community was that the murderers had been set free. And importantly, after the trial took its course, and after the accused indeed were found not guilty, the Giyani community further believed, as they were convinced of the murderers’ guilt, that it must have been through muthi and corruption that the so-called course of justice was determined, and that the court was just wasting their time with all the court hearings.

Whilst the responsibility to ensure that justice is done is borne by the courts in South Africa, research that pays attention to courts as well as how people interact with courts remains limited, particularly in the field of anthropology. In the [1]

region where I did my fieldwork, anthropologists and historian have been more interested in witch hunts and witchcraft than legal justice (e.g., Niehaus 2013). And yet courts are part of people’s everyday lives. This does however not mean that courts are necessarily the place where people assume justice is done. This is especially problematic since judges and magistrates have little control outside of the courtroom to explain and defend their positions. It is not always clear what courts do and often decisions don’t seem very' coherent. In fact, doing justice and being seen as doing justice are a kind of communication between state institutions and communities that often fails. And indeed, this is a common if not a defining feature of the relationship between the law and the common people (Merry 1990) that helps to establish the authority of the law (Bourdieu 1987). We thus have to take seriously the argument that people do not just misunderstand the courts but that the courts are very' hard to read and, actually, invite alternative readings due to their opaqueness. Being released on bail, for example, is popularly understood as meaning ‘not guilty’, under the logic that ‘they wouldn’t have let a guilty person walk free’. In addition, if for example the correct procedure was not followed in gathering evidence, or a case was dismissed because of lack of evidence, the community may conclude that corruption or a bribe must have been paid in order lor the case to be thrown out of court. Explanations of legal procedures do not really hold ground with them. What goes on in courts and what might have its own internal logic are often perceived as incoherent when viewed from the outside.

A similar logic might be at play when members of the Giyani community are ‘toi-toi-ing’ (demonstrating by singing and dancing) inside and outside the Giyani magistrate’s court. When someone is accused of a crime, the community gathers inside and outside this court, chanting songs that are of a complaining nature to let the magistrate know about their dissatisfaction with the crime and to demand justice - a justice they can recognise - be served. It is believed that if the community stands in solidarity then the judge will see the seriousness of the people’s demand and give a harsher sentence. Sometimes community' members go as far as burning tyres outside the magistrate’s court to emphasise their request. The public wants to see justice being done. Here the idea that a court accounts through the principle of open court is taken as the possibility to influence the court through public actions. If it seems that the judge is not properly listening to any particular side, people can voice their opinions through spectacular performances, both inside and outside the court.

This chapter does not seek to present, evaluate, or document what courts and the South African legal justice system do. Rather, the chapter aims to examine popular readings of what courts and the South African legal justice system do, and how members of the Giyani community interact with them. Specifically, the chapter investigates the particular moment of giving or refusing bail, and the role attributed to mutbi, corruption, and influential social relationships in determining the course of justice in Giyani.

Giyani, established in 1969, is a provincial town with a peri-urban spread situated in the north-eastern part of Limpopo Province. The town lies on the northern bank of the Klein Letaba River and to the west of Kruger National Park. In 1973, when the apartheid government made Gazankulu a self-governing homeland, Giyani became the official capital of Gazankulu and was designated a homeland for those classified by the Bantu Homelands Citizenship Act 26 of 1970 as Tsonga-Shangaan. The Tsonga-Shangaan were forcefully relocated and allocated land within the borders of Gazankulu (Buis 2011, p. 17). Since the township of Giyani is surrounded by a number of villages, Giyani has a mix of rural (customary') and urban (modern) forms of living and resolving conflicts.

Residents have recourse to two kinds of courts: magistrate’s courts and tribal courts. A magistrate’s court is a formal, constitutionally established structure, while a tribal court is an informal, community-based structure with its own procedural rules. In Giyani, disputes unresolved at the family or ward level are settled in a tribal court by the chief (referred to as Hosi in Xitsonga) or his representative. The chief and his representatives, referred to as a royal council, listen to both sides of the story and deliver judgement. Unlike the magistrate’s court, however, if the accused is found guilty' they are fined, rather than face imprisonment. They may pay the fine in money or by buying a sheep or a cow, depending on how ‘serious’ the crime is deemed, for the person they have wronged. Traditional court laws may also differ according to ethnic grouping and their chiefs. Traditional courts also deal with ‘small crime’ whereas the more serious crimes are dealt with in state courts. People in Giyani thus live under at least two systems of authority (Buis 2011). Even though certain disputes might be resolved by the traditional court, most people have access to, know about, and interact as well with the magistrate court.

For my theoretical frame and departure point, I draw on Adam Ashforth’s (2005) theory of spiritual insecurity, an insecurity about knowing what causes fortune or misfortune. Ashforth posits that even if people are never quite sure what brings about adverse circumstances, they believe that nothing happens without a reason and, further, that nothing bad happens without bad intentions from somewhere or someone. People with suspicions that their illnesses, misfortunes, or bad luck may be resulting from ‘the involvement of evil forces’ can seek help from a marketplace of ‘experts’ offering to make matters better, including ‘traditional healers, prophets, prayer circles, faith healers, preachers, teachers and doctors in numbers, all declaring powers indispensable to the troubled’ (Ashforth 2005, p. 127). Within this world of spiritual insecurity, some experts offer muthi - traditional medicine - as a means to change things for the better. When bad things happen, such as somebody being arrested despite being innocent or someone being found innocent despite being guilty, many point to corruption, including bribing judges, magistrates, and police officers. Muthi can be used to protect someone against being found guilty, but it can also be used to influence someone to act in a certain way; a witness, for example, might withdraw their testimony. Having strong social relations, meaning not paying someone but knowing someone who can intervene on your behalf, like someone who is a relative and a state official, also is said to play a prominent role in changing the course of justice (Hornberger 2011).

Following Ashforth (2005), such explanations are never conclusive. This chapter examines a situation in which muthi, corruption, and social relationships failed to explain or influence the course of justice. But as Ashforth (2005) states, when one thing does not work it is not a dead end. One continues seeking explanations and solutions, just as the community did in Giyani. Part of spiritual insecurity is covering all possibilities.

Getting bail

During my fieldwork, which took place in 2016, I followed two court cases of crimes that took place in Giyani. I begin here by discussing the bail procedure for these cases and the kind of meaning that was attributed to it and how people attempted to influence it. As I was conducting interviews and having informal conversations with people from the area, it was brought to my attention that a group of young men from the community had organised themselves into a community watch. The people were convinced that the police were not doing enough and that there was a lack of justice, and they felt they had to find solutions for themselves.[2] One night, members of the community were urged not go to sleep; if they heard footsteps or something suspicious, a whistle was to be blown to alert other members of the community to come and help catch the perpetrators. The young men identified three boys whom they suspected to be associated with a group known as the ‘plasma gang’ because they broke into people’s houses to steal plasma TVs. It was rumoured that plasma TVs contain a powder that was used to make a drug cocktail. The three boys were captured and beaten up. Tragically, one of the boys died, and the other two were beaten and tortured the whole night. The following morning, Ntsako, one of the three boys who had been badly beaten up, reported this violence at the Giyani police station, and identified Tiyani as one of the perpetrators. Tiyani was consequently arrested.

During the same period a few kilometres from Giyani, people in a small village were witch hunting, as they believed their village was infested with witches. An old lady was identified as one of the witches responsible for causing trouble in the village. Incidents like this led the ANC government to appoint an inquiry commission into witchcraft and ritual murder among its first gestures in government (Rhalushai 1995).[3] The spate, far from abating with the end of apartheid, was on the increase, as stated by Comaroff and Comaroff (1999, p. 282). Like the beatings of the three boys, the matter was reported to the Giyani police station. However, the police officers felt that they could not pursue an investigation or press any charges because South African law does not identify witchcraft as a criminal offence. And since witchcraft is believed to be associated with supernatural things, like lightning, invincible ghosts, and certain animals to name a few, there was no evidence to use against the old lady, and as such the case was not taken any further. But the villagers were certain that witchcraft was continuing and decided to take matters into their own hands. The old lady was burnt to death along with her house. A case of arson and murder was opened at the Giyani police station and two suspects, Jabu and Miyelani, were arrested. Again, it was young men, not people in authority, who felt most moved to execute ‘instant justice’ and to cleanse the country.

These brief descriptions of the two cases serve to provide an overview of what had happened before the bail procedure commenced. In the following discussion I discuss how bail was decided upon and how people took sides for and against the suspects. I start with the plasma gang case.

The day of the court hearing finally came. There were many people waiting for the start of the session, and I recognised many familiar faces. It is worth mentioning that as much as I was a student researcher in Giyani I was also born and grew up there. I was not surprised to hear that many people were there to support Tiyani, as such support had been expressed at a community meeting that took place at the local school before the hearing. I also spotted Ntsako and noticed that he was with his family members. I wanted to have a word with Ntsako to hear his side of the story, but I figured I should wait until the end of the court session so as to not disturb him. Ntsako and I had grown up in the same area and played soccer together. Due to limited opportunities in Giyani, Ntsako ended up as a bus marshal, helping park buses at the local terminal.

More and more people were arriving at the court and the noise grew even louder. It was time to enter the courtroom. I rushed to take a seat at the back, and in just a matter of minutes the room was full. When police officers brought Tiyani to the front of the court, community members began clapping their hands, whistling, and chanting his name. Court proceedings started and the prosecutor took the stand. He asked Tiyani harsh questions, stating that ‘a person passed away as a result of his actions’. The prosecutor kept emphasising that Tiyani took matters into his own hands and that this was not allowed by the law. This didn’t sit well with community members and caused an uproar. They had to be repeatedly silenced by the magistrate. Many of them were shouting, saying things like: ‘He took matters into his own hands because those we rely on for justice were failing to do their job’ and ‘This prosecutor is a fool; it is because nothing was stolen from him hence he acts this way’. Another declared: ‘it is because of him [Tiyani] that the community knows peace with regards to their belongings once again’. Other members of the community, especially those who were with Ntsako before the court session began, were silent throughout the whole court proceedings. ‘Could it be they were silent because they were outnumbered by the rest of the community?’, I asked myself. The atmosphere in court changed when the defence attorney took the stand. Suddenly the courtroom was peaceful and all people did was sigh leish yaaa' repeatedly towards Tiyani. ‘ Eish yaaa’’ is a sympathetic utterance in Xitsonga that shows that the speaker feels for whoever is in pain or facing something bad. It was clear from the proceedings that most members of the community wanted Tiyani to acquire bail, which he did, and which was followed by a victorious and celebratory mood among most of the people present. This spectacle and emotional investment on the part of the community shows that there is clearly more at stake than just bail - the temporary release of the accused.

A few days later I attended the other case concerning Jabu and Miyelani and the witch hunt. People were arriving in buses and taxis, showing that this was again a big case. As time drew closer to the start of the session more and more people arrived, but unlike the plasma gang case, people had mixed emotions about this one. This was apparent in the two interviews I had before the start of the court session with Tsundzu and Rhandzu, who were among the crowd gathering outside the court. When I asked Tsundzu what he thought about the case, he replied:

We have been suffering for a long time with these witches. They should be killed because they also kill our children. They make us suffer. All the misfortunes we go through are just too much and some we just cannot explain. Also, you never know when they will attack you so we live in constant fear. If the villagers could hunt down all witches and burn them, maybe we could have peace.

When I asked Rhandzu the same question, his response was:

I do not know why they burnt the old lady and her house. Now her children do not have a place to sleep. Everyone fears for their lives. If these people accuse you of being a witch they will burn you and your house down. I am glad that some of these so-called witch hunters have been arrested, it will be an example to the others.

We entered the courtroom and the proceedings started. The judge tried to convey that there was lack of evidence and instructed the police to continue collecting evidence. In the end, the accused were granted bail, and those supporting the young men again celebrated as if they had won the case.

In both cases there was a sense of exhilaration from the accused for being granted bail and they bathed in the supportive cheers of the community. After the first case, I had an interview with Rhulani and Mandla, and I asked them what they thought about their ‘hero’ getting bail. Rhulani said: ‘Finally justice has been served. Who does Ntsako think he is? He is the one who should be arrested; he has tormented us for a very long time. The police should arrest him’. Mandla also was critical of Ntsako: ‘Ntsako is a coward. Why did he even open a case against Tiyani? I’m glad that Tiyani got bail and he can continue with his life’.

After the second case I spoke with Masingita, who was celebrating that Jabu and Miyelani acquired bail. I asked her the same question I asked Rhulani and Mandla, and she replied: ‘I am happy that Jabu and Miyelani got bail. It means they will continue to clean the community of witches. After they burnt that witch we have not yet heard of any witchcraft-related activities in the community’.

The cases make clear that the community of Giyani does not let justice take its course but takes matters into their own hands. When they feel that the investigation process is being delayed, they conclude that police officers are dragging their feet and just do not want to make an arrest. Police officers not arresting crime suspects because of lack of evidence is read by the community as the incapability of police officials to produce justice. People call upon the state and the police to act against witchcraft. This call has to do with a moral panic related to the socioeconomic context. As Comaroff and Comaroff (1999) explain, in South Africa the end of apartheid held out the prospect that everyone would be set free to speculate and accumulate, to consume, and to indulge repressed desires, but for many this has not been the case. This has fuelled the belief that forces are intervening in the production of value because of jealousy and envy, thus diverting gains for selfish purposes and producing occult economies.

Both the celebrations after the accused were released on bail and the anger of some community members towards the court for granting bail serve as evidence that within the Giyani community acquiring bail means that the accused are considered ‘not guilty’. This sense was well expressed by one community member, who said, ‘Loko munhu va nwu nika bail ange he khomiwi. Swi vula ku hi loko case yayenayi herile which translates to ‘Once someone is granted bail they will not be arrested later on’. The community has concluded that the case is not serious enough and will be thrown out of court. Depending on which side you are on, this could either be regarded good news or bad news. Many of those I spoke with explained that if the accused were guilty then they would have remained in custody. In the first case, the community members believed they had influenced the verdict because they donated money for Tiyani’s bail and because they rallied for him before the court proceedings. Whether or not there were other legally procedural aspects, such ‘as on-going investigations’, was not taken into consideration.

What counted was the moment of the bail hearing. In many ways it had the character of a ritual, with a crowd that came together in great excitement and emotional involvement, to witness the scripted and formal procedure of the bail hearing. Because of this ritualistic nature, this moment gained in significance and immediacy, and lifted itself out of the more mundane continuation of the case. The court proceedings became a form of ritual because it became a scene and justice itself was put on a stage. It became an enactment of justice, a palpable reality, something people could witness and grasp. This is in line with Goffinan’s (1959) analysis of performance; in this case, the actors were the judge, the legal personnel, and the accused, and the people in the courtroom were the audience.

The people of Giyani see the court proceedings as the performance of justice at work. They might lack trust in the state, however the community does not view itself as peripheral or meaningless to the state because of the long-held belief that they are able to influence the state, whether by burning tyres outside the court or chanting songs that show dissatisfaction, and because they have the right to appeal when they do not agree with a verdict.

Keeping the case away: Postponement

What then happens when the ritualistic moment of bail passes and gives way to what is legally called ‘postponement’? How is this period understood when in fact the case has not really come to an end? It appears that active labour went into ‘keeping the case away’, as it is phrased. This active labour brought into sight further ideas about how the course of justice can be influenced. Both muthi and corruption played an important role here.

During the course of my ethnographic fieldwork, I became very close with Vhali (one of the popular young men in Giyani known to be friends with members of the most notorious gangs). Hanging out with him and some of his friends allowed me to hear them telling stories about criminal activities in the area and recounting the court cases of busted criminals. I decided to try my luck and reflected on Jabu and Miyelani’s case, not really sure whether Vhali and his friends had heard about it. To my surprise, one of Vhali’s friends named Vafana knew both Miyelani and Jabu. He started laughing, and I knew a good story was coming. I started the conversation by stating that I was surprised at the court’s decision to grant them bail considering that they had burnt the poor old woman and her house down. Vafana then told me it was evident that I did not know what really happened, saying: ‘Jabu and Miyelani were able to consult a sangoma before their bail hearing. The muthi they acquired from the sangoma assisted them to get bail’.

He told me about their use of muthi to gain power over their peers. I asked him to elaborate on his response, and he replied:

When you consult a powerful sangoma you can gain power over your peers, because they will all surrender to you. And you can use muthi when doing illegal activities such as pickpocketing, shoplifting, whatever you can think of.

I asked them how muthi was used during these bail hearings. Vafana then started detailing how Jabu and Miyelani used muthi to the change the course of justice:

They consulted a sangoma who did some ritual and gave them muthi, in lotion form, to apply for 30 days without taking a bath. This was done so they could acquire bail, and so blame could be shifted to some of the friends they acted with in burning the old woman as well as her house down.

Vafana further elaborated: ‘This is the reason why there was a lot of chaos in court that day, and a lot of names were brought to light’. Vafana went on to say: ‘After acquiring bail Jabu and Miyelani were given ashes of burnt python skin, which they were instructed to blow in order to keep the case away’.

There seemed to be a common link between python skin and court cases, as I had read in the Sowetan newspaper that a sangoma was selling python skin ashes that keep away court cases (Sowetan 2013). Hearing the story' from Vafana and having seen that Miyelani and Jabu acquired bail, I began to recognise the role people attributed to the use and power of mutbi. Also hearing their stories gave me a better and deeper understanding of how people from the community see and experience the bail process, and how they think about which powers are at work.

Jabu and Miyelani had a great deal of support in court because people believed that the old woman was really a witch and thus the burning was legitimate. According to the community, they were heroes who had saved them from witchcraft and all of its negative consequences. The murdered woman’s family received little sympathy from the community.

During one of my visits at the Giyani magistrate’s court, a young man approached me while I was waiting outside the courtroom and asked if I was also there for a court hearing. I replied that I was a student conducting research at the court. He was looking at the lists of cases to appear that day but he could not find his name, despite having a court order with him. Here Hornberger’s (2011) work comes to mind, in her discussion of how police officers sometimes disregard cases that are viewed as ‘not serious’ or ‘petty' crimes’ as a way of trying to manage their workload. As a consequence, some cases get neglected and fail to be prosecuted in court. Here then the failure of the justice system takes on a particularly mundane form. It is not just that judges and prosecutors speak a language of and carry' on with liberal ideals that matter little in people’s everyday lives. Sometimes things just don’t function well inside the court; this results in inexplicable and opaque outcomes. People make sense of these outcomes nevertheless. They do so very much by inscribing a certain intention to it, in relation to somebody having caused fortune or misfortune for them.

But the use of mutbi is not the only thing being used to influence the decisions of the court with regard to bail. In the case of the plasma gang, something interesting was going on regarding the struggle to keep the case away, meaning to prolong the event of bail as an event of justice. This happened with the help of another form of active interference, namely with money, in what we would generally call bribery'.

A few day's after the bail hearing I arranged an interview with Ntsako. We agreed to meet at my house. When Ntsako arrived, he told me: ‘Tiyani wants to buy my case with R50,000 but I refused because my mother advised me that the money could contain mutbi which could harm me’. Ntsako also accused Tiy'ani: ‘Tiy'ani bribed the witnesses because during the day of the bail application there were no witnesses’. He then suggested: ‘Tiyani should pay me R150,000 into my bank account. In that way the money will not be contaminated. You know Tiyani went to see a prophet who told him that his case will be cleared’.

In these statements, one can notice that there was bribery' involved in the form of an exchange of money. One can argue that bribery is not fundamentally different than mutbi, as money can be afflicted with powers similar to mutbi, especially when it is handed from hand to hand. Ntsako didn’t accept the money from

Tiyani because he was advised that he should not accept hard cash as the money could be contaminated by muthi. It is important to note that corruption, muthi, and social relations are related. The exchange in this case is enabled by social relations, specifically knowing people and being able to use money to influence them not to stand as witnesses.

Vhali introduced me to a friend of his named Kulani. During our interview Kulani told me: ‘You know, having a good relationship with police officers helps in keeping court cases away’. This is also an observation made by Hornberger (2011), who shows that forming personal relationships with police officials and other personnel can be advantageous. People can then speak of as ‘having their own police’. It is a form of informal privatisation of the police.

Kulani further told me: ‘My friend was a suspect in an armed robbery case. His parents, having connections and knowing people in high places, were able to contact high order police to suspend investigations on their son’. It is this spectrum of financial and social means that should be considered when trying to understand how justice is being shaped at the interface of courts, police, and people: from traditional medicine, to money in the form of muthi, to outright bribery', to making sure that the right people act on one’s behalf.

After a person is released on bail in most cases the hype around the case disappears and the community’s participation dissolves. Friction occurs when the accused try' and influence the course of justice using muthi and corruption. I argue that the accused knows that the case is not over and has to try' to keep the case away, using various forces. Jabu and Miyelani used muthi to keep the case away, and Tiyani was accused of using corruption to keep the case away. These stories told by Vhali and Kulani are further evidence of the community’s notion that the accused use muthi and corruption to keep cases away, resulting in postponement and further investigations. I further argue that in order to change the course of justice using corruption, one has to be connected to the right people and also have the money to influence the course of justice. Lastly, in order to change the course of justice one has to have access to muthi and also follow the sangomcCs prescriptions.

People use muthi, bribery, and social relations when they know the outcome will be against them. It is not that people who commit crimes do not know that they have wronged and committed a crime. In Ntsako’s case, he was severely beaten in full view of the community, and witnesses were available and willing to testify on his behalf before Tiyani allegedly bribed them with money. Tiyani also tried to bribe Ntsako to drop the case because he could see the verdict would be against him, and he would rather pay Ntsako to drop the case than face the full wrath of the law. Jabu and Miyelani’s case also shows evidence of legal wrongdoing. They had killed the old lady and burnt down her house, also in full view of the community, and there was a video footage of the incident. They knew the verdict would be against them and therefore sought out the use of muthi and python skin. With both cases, it appeared that the community and the accused both expected moral reasoning to hold more ground than the law. In their eyes they were doing the right thing and ridding the community of the ‘bad things that keep happening’.

In both cases, the use of muthi to avoid imprisonment, bribing witnesses, and befriending a police officer are all about bringing a similar outcome. The desired outcome is to keep the case at bay, be it by acquiring bail, postponement, or the case being dropped completely. The intention is the same, but the logic differs in that one must go through different channels to achieve each: one must consult the right sangoma for muthi, have money to make a bribe, and have a network and trusted relations in order for people to feel compelled and obligated to act on one’s behalf. Muthi can either be used in the case of a lack of a network or money to bribe, or just simply because one has a strong belief that muthi works in influencing the course of justice and the outcome. In Jabu and Mivelani’s case, this is a widely assumed idea, when such a serious case results in bail it is presumed that muthi may have been at play. Hence people believe much more in muthi and seek it as a solution, more so than bribing or using social relations and/or network (which is pursued by only a few). Postponement is not just a time of waiting: it is an active time of keeping the case away. Postponement is supposed to be a time for the police to gather more evidence, but it is also an opportunity for the accused to make sure the case stays away, and the longer it takes the better. At the same time, there is the labour of keeping the case away, expanding the event of the bail hearing into everyday life (un-eventfulness).

The law wins?

How do people make sense of things when the efforts of the accused to keep a case away fail? Explanations, discussed in this section, pointed to an accused’s neglect to follow instructions on how to use muthi properly. I also look at what changes when a case is transferred from the local to the regional court, and how this affects the accused’s sphere of influence: they lose the capacity to influence the court with corruption and also they lack the right connections in the new locale. Hence, both the above-mentioned cases resulted in sentencing, reversing what had been seen as a moment of justice - ‘the bail procedure’ - and revealing the precariousness and instability of the community’s interpretation of it. Returning to Ashford (2005), I show that the sentences passed down against the interest of the majority of the community do not as such contradict the possibility of influencing the courts. Doing so is always already part of a set of actions that result from a spiritual uncertainty of what works and what does not. By rejecting the idea that the high court’s judgement is the final word, the community regains some sense of agency despite the setback.

In both cases, a few weeks after the accused got bail the hype around the events disappeared and people were no longer talking about them. I managed to meet up with Ntsako and we spoke about the case and his thoughts on it. Ntsako was optimistic, saying:

I have been communicating with my lawyer and he informed me that we have a great chance of winning this case because the medical examinations are back. He also informed me that the case will be handled by the regional court.

I was surprised to see Ntsako this confident because the last time I had spoken with him he seemed to have given up. But now, after speaking with his lawyer, his confidence was restored and he was willing to continue fighting his case. I asked Ntsako if he had enquired about the R150,000 that he demanded to drop the case. He said that:

I have not spoken to Tiyani in a very long time. Even,’ time I see him he just drives past me. Maybe it is because he is out on bail. But you know now that the case has been taken to the regional court. I cannot drop the case anymore.

I said my goodbyes and asked to meet him after the case hearing because I was informed that not everyone was allowed to attend the regional court’s proceedings. Ntsako agreed to meet up again after the hearing.

The same day I also met with Vhali and we spent time talking about Jabu and Miyelani’s case. He told me that new evidence had been given to the investigators of the case:

Haven’t you seen the video of Jabu and Mivelani? There is a video of them all over WhatsApp burning the old lady and her house. The relatives of the old lady have taken the video to the investigator handling the case.

After a bit more conversation, I said my goodbyes to Vhali and also promised to talk to him after the case.

After a few days, Ntsako had his case heard at the regional court. I waited outside the courts hoping that community members would also wait outside in support of Ntsako or Tiyani. I was left disappointed because only a handful of people were outside the court with me. We waited there for an hour or so, then I left to quickly go and buy myself a cold beverage, because it was extremely hot. Standing under a tree to cool off, I heard loud roars from the crowd near the court. I tossed the bottle of water in a bin and ran towards the crowd of people walking out the courtroom. I approached the people exiting and asked a woman named Lulama for the verdict. She replied: ‘It is very painful. Tiyani has been arrested. The judge has given him 21 years in prison’.

The following day I met with Ntsako at his house, and one could sense the happiness in his household. His mother offered us lunch before we started the interview. After finishing our lunch, I asked Ntsako to share his experience at the regional court and how the case unfolded. Ntsako mused:

Where should I start? To be honest, I cannot remember much because my main focus was the case itself. My lawyer did a lot of the talking. He presented our case and also provided the medical examinations to the judge, which was evidence that I was kidnapped and beaten up all night. Oh! For the first time Tiyani pleaded guilty; I think he was advised by his legal team.

The judge had nothing to do with that. There was a lot of evidence that I was innocent.

I asked Ntsako how he felt about the verdict, and he replied:

I felt happy because Tiyani received what he deserved. Finally the community' will also accept me back into the community because I was always isolated like I was a criminal. I am also planning on going back to school so that I can redo my matric.

I thanked him for always agreeing to let me interview him, every time I asked. I spent the rest of the day conducting interviews with other members of the community. The community in general w'as very disappointed that Tiyani was arrested. When I asked Mr Maluleke, an older member of the community, what he thought about Tiyani’s arrest he said: ‘You know' the South African law' always protects criminals. Ntsako should be the one behind bars, not Tiyani. But do not worry'. At the next community meeting w'e are going to find ways to appeal the verdict’.

Following these cases, I came to conclude that when a case is moved to the regional court the accused is unable to influence the case with corruption because a different judge handles the case. Also, the community’s response to the verdict suggests they believed that justice was not served because their hero w'as arrested, and the mention of an appeal indicated that the community had not given up on trying to influence the court like they did when Tiyani w'as granted bail. For them, the law' won, but only because the case was moved to the regional court and also because the community was not involved after Tiyani acquired bail.

A few' days later, Jabu and Miyelani were due to appear in court for their final verdict. At the Giyani magistrate’s court it was very tense because of the new video evidence that had been provided to the court. Miyelani and Jabu pleaded not guilty, but then the investigator provided the video evidence to the magistrate, and both Miyelani and Jabu w'ere given life sentences.

As I w'as walking outside the magistrate’s court, I noticed Vhali standing with his friends whom I recognised from earlier interviews. Vhali introduced me to them once again; fortunately enough, most of his friends recognised me, which allow'ed me to ask them a few questions. I threw a question at the group, asking how Jabu and Miyelani lost the case when they were using muthi. One of Vhali’s friends replied: ‘Jabu and Miyelani became too arrogant and stopped using the muthi, which weakened the muthi, hence they lost the case’. Another chimed in:

He is right they stopped using muthi like they did w'hen they acquired bail. Jabu and Miyelani w'ere no longer using muthi. Jabu and Miyelani being arrested is just a way of muthi turning against them. When you use muthi you must never, never, never stop using muthi, because it will turn against you!

I then asked if it was possible for them to use muthi to get out of prison. They took some time before they answered my question, but one did eventually reply:

I once heard that you can get muthi working again but one has to consult the same sangoma, to renew the muthi. But I do not know how Jabu and Miyelani will be able to consult a sangoma in prison.

It was time for me to go home, so I said my goodbye to Vhali and his friends. They asked if I could buy them a few beers and I promised them that the next time we met I would.

These stories suggest that maybe the law ‘won’ but how people made sense of it was different. The law only won because Jabu and Miyelani became too arrogant and stopped using muthi, weakening it. Vhali’s friend’s statement seems to suggest that if Jabu and Miyelani were able to consult the sangoma they received the muthi from, they might be able to find a way out of prison.

One can argue that the law won because Jabu and Miyelani became too arrogant and neglected muthi. The community believes that if an individual stops using muthi then the forces that animate its power will come back and haunt them. A whole set of possibilities is left open: What could have happened if they continued to use muthi? Would they have been able to keep the case away? And what could happen if they could get muthi in prison? Could it reduce their sentence or help them get out? Perhaps the judgement is not the end, but is instead just the occasion to adjust the story'.

According Ashfbrt’s (2005) theory' of spiritual insecurity, when the accused wants to cover all the bases of the court case, they will seek out different forces, even if they do not know if they will work. The accused will consult sangomas, faith healers, witch doctors, teachers, etc., in order to cover all the bases. The court sees the sentencing as the end of the case but the accused sees it as an opportunity to try' and influence the case with other forces. We can see this in the Giyani community’s plans to use this period to appeal Tiyani’s prison sentence, and in the possibility' that Jabu and Miyelani will reconsider their use of muthi. For them, the case has not really come to an end.

As discussed, the community does not view itself as peripheral or meaningless to the state because of the long-held belief that they can influence it through various acts: burning tyres outside the court, chanting songs that show dissatisfaction, and appealing when they do not agree with a verdict. And then there are means such as muthi, corruption, and powerful social relations that can be mobilised to influence and to explain the course of justice.

What defines a crime and what is justice are both contested here. In these cases, the community disregarded the crimes and viewed the people responsible as heroes acting in the best interest of the community. Thus, the community as well as the accused expected moral reasoning to hold more ground than the law. In this view, Tiyani, Jabu, and Miyelani are not guilty, at least morally. These notions of communal justice are negotiated in a fraught field between an opaque and unpredictable law and efforts to protect oneself and one’s community.


Officially and legally, bail has nothing to do with whether somebody is guilty or not, but it is only the temporary release of someone who is awaiting trial. This chapter shows that there are actually multiple temporalities in a court case: getting bail, postponement, and judgement. However, the Giyani community assumes that an accused’s release on bail means that they are not guilty, and thus is seen as evidence of the inefficiency of the justice system. If a verdict does not go as expected, muthi, corruption, or social relations are believed to have played a role in influencing the outcome. These stories make clear that justice does not only encompass the legalities of the courts but must also be seen by the general public to have been done. When the state is deemed incompetent, community members take matters into their own hands, as we see in the two cases discussed here. This has to be seen in a context where this switch to street-level justice has to do with a moral panic related to the socio-economic context of the actors. People use muthi, bribery, and social relations when they know the outcome will not favour them, but the community and the accused expect moral reasoning to hold more ground than the law. Justice is thus executed at the margins, outside of the formal state system, perhaps because of a lack of trust in the court and, hence, the state.


Ashforth, A., 2005. Witchcraft, Violence, and Democracy in South Africa. Chicago: University of Chicago Press.

Bourdieu, P., 1987. The force of law: Towards a sociology of the juridical field. Hastings Law Journal, 38 (July), 814-853.

Buur, L. and S. Jensen, 2004. Introduction: Vigilantism and the policing of everyday life in South Africa. African Studies, 63 (2), 139-152.

Buis, E. R., 2011. Surviving transition in the Giyani District: The role of small-scale rural development projects in a period of rapid socio-political and economic change. Thesis (PhD). University of Pretoria.

Comaroff, J. and J. L. Comaroff, 1999. Occult economies and the violence of abstraction: Notes from the South African postcolony. American Ethnologist, 26 (2), 279-303.

Goffman, E. (1959). The Presentation of Self in Everyday Life. New York: Doubleday Anchor.

Sowetan Live, 2013. Do not use muthi to protect criminals - healers urged. Sowetan Live, 3 April. Retrieved on 25 May 2016 from

Hornberger, J., 2011. Policing and Human Rights: The Meaning of Violence and Justice in the Everyday Policing of Johannesburg. London: Routledge.

Niehaus, I., 2013. Witchcraft and a Life in the New South Africa. Cambridge: Cambridge University Press.

Kirsch, T. and T. Gratz, eds., 2010. Domesticating Vigilant ism in Africa. Oxford: James Currey.

Merry, S., 1990. Getting Justice and Getting Even: Legal Consciousness Among Working-Class Americans. Chicago: University of Chicago Press.

Ralushai N.V., 1995. Commission of Inquiry Into Witchcraft Violence and Ritual Murder in the Northern Provinces of the Republic of South Africa. Pretoria: Republic of South Africa.

  • [1] According to Ashford (2005, pp. 211-212), ‘the term muthi (spelled mud in Xhosa transliterations) derives from the Nguni root -thi, signifying “tree”. Usually translated into English aseither “medicine” or “poison”, with the anodyne “herbs” used in ambiguous instances. Muthirefers to substances fabricated by an expert hand, substances designed by persons possessingsecret knowledge to achieve either positive ends of healing, involving cleansing, strengthening, and protecting persons from evil forces, or negative ends of witchcraft, bringing illness,misfortune, and death to others or illicit wealth and power to the witch’.
  • [2] It is worth noting that community watches and vigilantes are very common in South Africa(Buur and lensen 2004, Kirsch and Graetz 2010).
  • [3] Research in Northern Province highlighted a similar phenomenon. Rural populations wereconvinced that their neighbourhoods were infested with human evil, and believed that thestate, both past and present, had failed to protect ordinary citizens from malign forces, leaving them little recourse but to protect themselves (Comaroff and Comaroff 1999, p. 285).
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