ABSTRACT
In 1994, South Africa gained full democracy after many years of apartheid rule, under which political oppression was the norm. In keeping itself in power, the government of the day trampled on civil liberties, inter alia by routinely using covert surveillance to collect information about political dissidents. However, after 1994 South Africa instituted a strong constitutional democracy, incorporated a liberal and wide-ranging Bill of Rights into the new Constitution of 1996 and, for the first time in its history, established a Constitutional Court. State institutions were set up to protect the rights of its citizens, such as the South African Human Rights Commission; The Public Protector; The Commission for the Promotion and Protection of the Rights of Cultural, Religious, and Linguistic Communities; and The Commission for Gender Equality. In the ensuing years crime has emerged as one of the major challenges for
South African citizens and state institutions. In the context of extremely high levels of crime, in particular of violent crime, the public has made numerous and vociferous calls for the state to be tougher on criminals. Since the late 1990s, the exponential growth of security measures-gated neighborhoods, road closures, “security villages,” and armed-response private security companies with the attendant use of both open-street public and private CCTV surveillance (as one component of integrated security systems)—has largely been premised on an almost paranoid fear of crime and extreme feelings of insecurity. Crucially, when it comes to the implementation of both public and private CCTV surveillance in an integrated security system, there has been an almost total absence of any public debate regarding issues of public consultation (no public authority established these measures, nor consulted with civilsociety stakeholders on whether such systems should be installed using public monies), invasion of privacy, evidentiary use of surveillance information, and other humanrights and civil-liberties issues. The implications of the
ever-expanding CCTV surveillance footprint covering large areas of central business districts in the major metropolitan urban areas of South Africa are simply not being debated, largely because such systems are seen as expedient and necessary measures to assist in the fight against crime. Fear of crime combined with a desire to improve feelings of safety and
security have led to more access-control systems being implemented based on road closures (many making use of private CCTV surveillance systems as part of integrated security measures linked to a central control room). These are most apparent in the more affluent suburbs, in so-called gated neighborhoods and the private-security villages/estates that have sprung up all over the country. Some commentators have, however, questioned the legal underpinnings of both the principle of gated or secure private areas and the installation of such surveillance systems. This includes questions about the possible abuses of these measures, including restriction of free movement, the covert “screening” of who is allowed entry, demanding identification information, stopping and searching vehicular traffic, and the use of information gathered by such means for other purposes. Other ancillary issues regarding accountability and oversight of such “pri-
vate” systems of security have also been raised. However, some proponents point to the need to balance security (inter alia surveillance) needs with certain restrictions on human rights, precisely in order to fulfill the constitutionally enshrined right of the state and police to “protect and secure its citizens.” This paper explores some of these issues within the context of South African
constitutional democracy, with reference to constitutionally enshrined principles of the right to privacy, information, free movement, personal safety and, more specifically, the South African Human Rights Commission public hearings on the issue of “road closures and boom gates.” It addresses one of the most high profile issues in South Africa, and how new constitutional governmental frameworks sensitive to individual rights have played themselves out in trying to address the complex issues raised by these developments.
