Rationalising injustice : the reinforcement of legal hegemony in South Africa

• Published date: 01 December 2018
• Pages: 7-17
• Author: Thato Masiangoako
• DOI: 10.17159/2413-3108/2018/v0n66a5633
• Date: 01 December 2018

7

SA CRIME QUARTERLY NO. 66 • DECEMBER 2018

Rationalising

injustice

The reinforcement of legal

hegemony in South Africa

* Thato Masiangoako is a researcher at the Socio-Economic

Rights Institute (SERI), and recently completed her MA (Politics)

at the University of the Witwatersrand. This article draws from the

research conducted for her MA.

The legal system in South Africa holds a legitimate and authoritative position in the country’s

constitutional democracy and political order, despite the commonplace experiences of injustice

that take place at the hands of the criminal justice system. This article looks at how the legal

consciousness of community activists, student activists and migrants is shaped by experiences

of arrest and detention, and focuses particularly on how their perceptions of the law reinforce the

legitimacy and hegemonic status enjoyed by the criminal justice system and broader legal system in

South Africa. The article draws on original interviews with community activists, student activists and

migrants, who recounted their experiences of arrest and detention. Using a socio-legal framework

of legal consciousness, the article unpacks how these groups reinforce legal hegemony through

the ways in which they understand and rationalise their experiences of punishment. Despite the

reasonable expectation that those who have experienced a miscarriage of justice would be most

sceptical and pessimistic about the law’s legitimacy, this article f‌inds that they continue to maintain

their faith in the law. The article presents an analysis of interviews conducted with members of

these groups, and shares evidence that begins to explore some of the ways in which South Africa’s

criminal justice system is able to sustain its legitimacy,despitethe gaps between what the law ought

to be and what the law actually is.

Thato Masiangoako*

thatomasiangoako@gmail.com

http://dx.doi.org/10.17159/2413-3108/2018/v0n66a5633

Scholars and practitioners who have studied

South Africa’s criminal justice system have

focused on crime, policy, and institutional

perspectives in their efforts to understand its

nature, effects and place in society.1 These

accounts have tended to overlook how

members of society view and understand the

criminal justice system. By providing a top-

down understanding of the system, these

scholars have missed the various bottom-up

processes that entrench, but also resist, the

character of criminal justice in South Africa

today. In particular, these accounts do not help

us understand how the criminal justice and

broader legal systems are inf‌luenced from below

through the actions and perspectives of ordinary

members of society.

This article attempts to address this oversight

by using the socio-legal framework of legal

consciousness to explore the ways in which