Citizen and Pariah

Somali Traders and the Regulation of Difference in South Africa

Vanya Gastrow

• Editorial: Wits University Press
• Año: 2022
• ISBN:
  9781776147427
• Categoría: Social Sciences
• Categoría: Emigration & Immigration

Hoping for a better life, many migrants have made the journey to South Africa and set up as informal spaza shop traders in small towns and township areas, supplying the local residents with essentials. These traders work hard, open their shops early, close late and support their relatives and kinspeople in starting new businesses. But thriving in environments afflicted by unemployment and crime is almost impossible when armed robberies are a daily reality, protection from law enforcement is not a given, and access to justice is effectively out of reach.
Engaging first-hand with small traders and the Somali communities in Khayelitsha, Kraaifontein and Philippi, Vanya Gastrow investigates the predicament of these modern-day pariahs – social and political outcasts who belong neither to the elite nor the common people, and who are frequently the focus of xenophobic anger.
Tracing national-level regulatory developments in post-apartheid democratic South Africa Gastrow shines a light on how retailers have been politicised and how they have faced growing informal and formal regulatory efforts to curtail their business activities. She demonstrates how democratic and constitutional frameworks can erode in contexts of heightened nationalism, populism and economic inequality. By investigating Somali informal shopkeepers' experiences of crime, justice and regulation in the country, the fragility of law, pluralism and democracy in South Africa is uncomfortably exposed.

Part I
Arrival and Reception

1 | Introduction: Law, Justice and the Pariah

You are pariahs. You have to live on tenterhooks lest anyone deprive you of your rights or property.

Theodor Herzl, Gesammelte Werke

The meeting hall at Khayelitsha Resource Centre is mostly empty. Plastic chairs are arranged in uneven rows across the room. They face an elevated platform, where seating has been set out for several speakers. It is 7 March 2012. A golden late-summer light shines through the windows and illuminates the dust particles moving slowly through the air. Most attendees are still gathered at the entrance area greeting each other and engaging in polite chatter. But their civil conversations mask more than they disclose. Eyes and smiles are tense. Handshakes are stiff and clasping.

Having opted out of the fraught introductions, I sit down on one of the vacant seats. A few minutes later casually dressed shopkeepers, neighbourhood representatives and civil society members drift into the venue and a hum of chatter reverberates across the room. I notice two Somali representatives across the hall smiling at me and beckoning me to join them. I smile back but shake my head. I am not willing to make myself their visible acquaintance in the tense surroundings.

When the hall is almost full, a tall man dressed in a suit with a priest’s collar takes the podium. Reverend Mbekwa’s eyes dart pointedly around the audience and the banter quickly subsides. Seated behind him on the platform are two South African and two Somali retailers’ representatives. One of the Somali representatives is wearing a tight-fitting dusty black blazer. In the afternoon heat he is perspiring profusely. Beside the retailers’ representative sits Sibongile Mbotwe, the special adviser to the national minister of police. I do a quick headcount of the attendees. Of the 79 people in the room, 75 are South Africans. Four are Somali. Later on, a group of six Somali shopkeepers discreetly enter the hall and seat themselves towards the back of the venue.

Mbekwa, who has chaired meetings between traders in Khayelitsha for several years, commands the attention of the audience: ‘On 22 May 2008 xenophobic riots took place in Khayelitsha. In November 2008 it was therefore agreed that no new shops would open.’

The room is silent. Attendees are all familiar with the agreement of four years ago that he is referring to. The agreement was the outcome of negotiations between the Somali Retailers’ Association (SRA) and the Zanokhanyo Retailers’ Association (ZRA). It stipulated that no new spaza shops could open in Khayelitsha without both bodies’ approval.

Spaza shops are small informal grocery shops and they are found in most of the country’s largely low-income black township neighbourhoods. Many South African residents in these townships convert portions of their properties – be they front yards, garages or sections of their homes – into business premises, which they then rent out to foreign shopkeepers. The presence of foreigners in this market has in turn attracted the ire and hostility of their competitors, namely, South African shop owners. Agitating against the presence of these foreign shopkeepers is not something new.

The reverend is shaking his head disappointedly. The post-2008 agreement has not been properly managed or monitored, he says – ‘It is now just a piece of paper.’ Somalis and Ethiopians have continued to open shops in the township without any regard for the peace-keeping measure. These new shops not only breach the agreement, Mbekwa asserts. ‘Also by law they must have permits. The by-law to limit the influx is not working.’ Despite being given notice by law enforcement officials, shops had remained open. This left South African retailers with no other option but ‘to take it upon themselves’ to close down foreign shops.

Mbekwa speaks with an air of moral authority and self-belief that leaves no room for compromise or critical reflection. Yet what he describes as official ‘law’ is largely fictional. Spaza shops may be informal, but that does not mean they are illegal. No law in Cape Town requires spaza shops to possess permits. Likewise there is no by-law limiting the so-called influx in the neighbourhood or city. But no one in the room – including representatives from the South African Police Service who are there – seems willing to question Mbekwa’s construction of a parallel legal reality. Two seats away from me I recognise a member of a local refugee rights NGO who greets me with a brief nod but, like me, maintains their observer status.

The South African ZRA members who had taken it upon themselves to close down foreign spaza businesses in Khayelitsha were not engaging in extraordinary action. ‘Self-help’ was commonly deployed in the area when formal legal avenues appeared insufficient. The dry, expansive township on the fringes of Cape Town is meticulously organised from the street level upwards. Street committees convene regularly over anything from domestic disputes to housing delivery to crime. Unresolved matters are referred on to area committees, and thereafter escalated to ward or township committees.

Together these structures fall under the South African National Civic Organisation (SANCO), a large national umbrella organisation that is heavily invested and engaged in township governance. SANCO does not only enjoy popular support. It is also closely allied to the country’s leading political party, whose assistance and resources it draws on when grappling with local issues. The trade-off is that the voices and opinions of those who are not aligned to the party are often overlooked.

The power and authority that popular township groupings exercise at the local level can both compete with and override those of the state. They generate rules and customs that tightly control and manage everyday township life. For the person on the street, ignoring these regimes can mean risking injury or death, as the punishments that are meted out can be violent. Lack of formal authority is often little hindrance to these regulatory systems. Community leaders are not afraid to enforce their ‘laws’ themselves, whether that means adjudicating crimes and punishing offenders or, in the matter under discussion in this hall today, closing down new foreign national shops. Government and political party representatives often watch from the sidelines, not wanting to provoke violent protest or endanger their already fragile legitimacy among key political constituencies.

But informal regulation has its challenges. SANCO in Khayelitsha is backtracking on the spaza trade agreement. While many SANCO leaders are sympathetic to South African shopkeepers, others have sided with landlords who rent out premises to foreign traders. This mixed support proves to be a headache for South African shopkeepers. Attempts to close down foreign shops had initially seemed promising. A few days prior to the meeting 30 South African shopkeepers had driven in convoy to Somali businesses in Harare, Khayelitsha, and ordered them to close down. Traders who protested were hit, kicked and pushed around. Yet the protest had not immediately drawn widespread popular support, and some landlords had threatened counter-protests.

But new foreign traders were not entirely off the hook as, overall, the trade agreement in the township held. While police did not close down new migrant shops, neither did they act against the South African retailers who had driven in convoy. A Somali community leader described that when migrant traders tried to lay complaints with the police, the police retorted that it was not in anyone’s interest to arrest people, as this could ‘escalate the whole thing’. The turmoil eventually led to a temporary impasse. The new shops remained open, but foreign traders were left in no doubt that the establishment of any further businesses would be at their peril.

Although the principle of the rule of law is weak if not largely absent in Khayelitsha, few foreign traders would in any event view this notion as some form of salvation or justice. Formal laws lack the flexibility of informal rules, which can be negotiated, adapted or sidestepped. Although formal laws could protect foreign businesses by recognising their entitlement to trade and punishing those attempting to expel them, demands for stricter application of laws could just as easily backfire. Police and law enforcement officials are only too eager to step up quasi-militarised operations against foreign national businesses via searches, confiscations of stock and arresting undocumented traders. The formal law can also change according to society’s whims. The current legal framework is relatively lenient towards informal township traders.¹ But overly relying on legal provisions that favour them could result in these laws being amended. While fragmented and devolved legal systems can prove capable of spurring injustice and even brutal violence, for many they are still less menacing than the offerings of the modern bureaucratised state.

The reverend’s speech is followed by further discussion. One participant likens breaching the agreement to breaking the law: ‘People know about the agreement, but it’s like selling drugs. It’s illegal, but we do it because we are hungry.’

Mbekwa then invites Mbotwe to speak. Despite his title as senior adviser to the national minister of police, Mbotwe does little to correct Mbekwa’s misrepresentation of the law: ‘The beauty of Khayelitsha post 2008 is this agreement. We must ask the Somalis to give an audit of shops in 2008 and we start from there,’ he tells the audience. He pledges police support. ‘The police will come and make sure the agreement is enforced in each and every community.’

Mbotwe calmly takes his seat. His speech has left little doubt over the police service’s stance on shop regulation in the township. The room remains still and Mbotwe looks across to the chairperson to continue. Then a hand goes up. Mbotwe looks at the audience member – an unassuming Somali man – and nods. ‘Is it legal for an agreement to limit the shops of one minority group of people and not apply to other people?’ The question pierces the carefully managed calm in the room.

‘He is trying to side-step the agreement, so we are not going to entertain his question,’ the chairperson interjects. Mbotwe nevertheless responds: ‘Here we signed to accommodate the Somali community. We want Somalis to abide by the rules for peaceful coexistence. We understand why you are here, but we need your assistance. Arrogance will not help you or us.’

But Mbotwe’s answer does not seem to have satisfied all audience members. Some Somali attendees have further queries. The Somali representative seated on the platform – now more at ease and perspiring less – asks curiously, ‘What if your shop opened after 2008 but has a licence? Also, why do you come now, but not earlier? There are 200 new shops. Are you going to close down all of them?’

Instead of resolving ambiguity about the law, Mbotwe’s attendance has backfired. His presence unexpectedly invites questions by those seeking legal clarity. He concedes that he cannot answer the questions: ‘I do not come here with all the solutions.’

Noticing the change of direction of the meeting, a member of the SRA comes to Mbotwe’s defence. ‘The main problem in Khayelitsha is the new shops,’ he says. ‘We need government to assign a task team on this thing. We need implementation.’

Another Somali community representative fails to toe the line. The man stands up in the crowded room and argues that a peaceful solution to the conflict should not violate the rights of South Africans or foreigners. The room begins to rumble with disapproval, tension and unease. The reverend is beginning to lose patience. ‘You missed the agenda of this meeting,’ he says. ‘It says: “How can we work together to control the overflow of influx?” As a leader of the Somali community you should know better.’

South African retailers mutter among themselves and shift around in their seats. ‘That Somali man is arrogant because they have money to buy their way,’ one of them angrily claims. Another in the audience, a tall thin man, raises the spear he holds in his hand and furiously threatens the Somali speaker with assault. Loud commotion erupts in the hall, and participants shuffle about. Mbekwa is incensed and frustrated. Aware that he has lost control of the meeting, he prematurely concludes it by shouting over the cacophony.

Carefully avoiding eye-contact with anyone, I make my exit.

According to German sociologist Max Weber, ‘pariah people’ can be found throughout the world.

These people form communities, acquire specific occupational traditions of handicrafts or of other arts, and cultivate a belief in their ethnic community. They live in a diaspora strictly segregated from all personal intercourse, except that of an unavoidable sort, and their situation is legally precarious. Yet, by virtue of their economic indispensability, they are tolerated, indeed frequently privileged, and they live interspersed in the political communities.²

One could say pretty much the same about Somali migrants in South Africa today. In most cities in South Africa Somalis have established neighbourhood enclaves where they live in tight-knit communities that are largely cut off from mainstream South African society. They either set up shop in these enclaves or venture out to low-income neighbourhoods or small isolated rural towns to start up small businesses. They rarely socialise in these environments, however.

Their most common form of township enterprise is spaza shops supplying surrounding neighbours with basic household necessities such as bread, milk, cold-drinks, vegetables, sweets and cosmetics. Working in a spaza shop means no ‘leisure time’. Traders wake up early and work throughout the day. South African residents who comprise their customer base tolerate them largely because of their low prices and the range of services they offer. Most Somalis in South Africa are asylum seekers or refugees who can legally live and work in the country.³ However, these rights are tenuous. Asylum seeker permits must repeatedly be renewed by the country’s largely corrupt, inefficient and erratic refugee reception offices.⁴ At the same time paperwork is no guarantee of protection.

Weber’s term ‘pariah’ originates from the pariah caste in India, and it was later adopted by Hannah Arendt in her reflections on the position of Jews in nineteenth- and early twentieth-century Europe. Arendt believed that the defining feature of pariah people was not that they engaged in petty trade or were legally precarious, but more fundamentally that they were political and social outcasts. They belonged ‘neither to the common people nor to its rulers’.⁵ In this sense the pariah has wider relevance to a mobile and plural age, in which increasing numbers of people struggle to find a secure location in society.

The quandary of the pariah – unable to leverage elite power or the basic entitlements of common members of society – has relevance to those who fall outside of both elitist establishments and popular masses. Their experiences shed light on how those living on social and political peripheries seek dignity, freedom or, more modestly, the simple enjoyment of a ‘plain normal life’.⁶

What does the meeting on the balmy afternoon of 7 March 2012 say about the condition of the pariah in post-apartheid, democratic South Africa? Examining how a pariah group encounters and navigates social, political and legal orders in contexts of poverty and informality is a window into how life on the margins is experienced. In these spaces social desires and anxieties are often at their most elevated and urgent, and formal laws at their weakest and most distorted. Rights and entitlements ebb and flow along the lines of what society and tho...