CITIZENS AND EXCEPTIONS:  
ILLEGAL IMMIGRATION, CITIZENSHIP AND THE 
STATE 
 
 
Does the theory of the state of exception provide a useful framework for 
examining how citizenship is understood, constructed and regulated in 
contemporary South Africa?  
 
 
Aidan Mosselson 
(Student Number 0310141D) 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
?A thesis submitted to the Faculty of Humanities, University of the 
Witwatersrand, Johannesburg, in fulfilments of the requirements 
for the degree of Masters of Arts, in Sociology (by Dissertation)?. 
 
Johannesburg, 2009. 
 ii
 Abstract 
 
Citizens and Exceptions is a theoretical examination of South Africa?s current 
approach to immigration and citizenship. The work utilises Agamben?s theory of 
the state of exception to analyse the laws and policies put in place to regulate 
immigration in South Africa and to examine the methods and practices used to 
enforce these laws. It also studies the xenophobic riots of May 2008 from this 
perspective. This is done in order to understand the discourses, practices, and 
modes of state power at work in the immigration sphere. The underlying theme in 
the work is based on Schmitt?s assertion that the norm depends on the exception. 
Thus, a study of illegal immigration in South Africa ? the exception ? provides a 
lens through which the norm of citizenship can be understood. For Agamben, the 
state of exception is ?a legal no-man?s land? in which law and illegality blur. The 
current South African state?s approach to immigration constructs illegal 
immigrants as exceptions and places them within this no-man?s land. This is done 
in several ways, which are explored in this work. At the same time, the 
establishment of a boundary, of an exceptional category, gives form to another 
category, that of citizenship and the nation. This is asserted in the thesis, and is 
done through the use of the state of exception, as well as Foucault?s concepts 
?governmentality? and ?biopolitics?. All of these are revealed as informative 
concepts through which contemporary citizenship, immigration regimes, and 
processes of population production can be understood. At the same time, flaws 
within these concepts are exposed and discussed.   
 iii
 Declaration 
  
I declare that this dissertation/thesis is my own unaided work. It is 
submitted for the degree of Masters in the University of the 
Witwatersrand, Johannesburg. It has not been submitted before for 
any other degree or examination in any other university.  
 
Aidan Mosselson 
 
Third day of February, 2009.  
 iv 
Many questions were troubling the explorer, but at the sight of 
the prisoner he asked only: ?Does he know his sentence?? ?No,? 
said the officer, eager to go on with his exposition, but the 
explorer interrupted him: ?He doesn?t know the sentence that 
has been passed on him?? ?No,? said the officer again, pausing a 
moment as if to let the explorer elaborate his question, and then 
said: ?There would be no point in telling him. He?ll learn it on 
his body.? ? Frank Kafka, ?In The Penal Colony?. 
 
The longing for order is at the same time a longing for death, 
because life is an incessant disruption of order. Or to put it the 
other way round: the desire for order is a virtuous pretext, an 
excuse for virulent misanthropy ? Milan Kundera, The Farewell 
Party. 
 v 
Table of contents 
 
Preface.................................................................................................................. vi 
Introduction ........................................................................................................ 1 
Chapter One: 
Literature review and theoretical perspectives ........................................ 8 
Chapter Two: 
The policy framework, the law and illegal immigration...................... 35 
Chapter Three:  
Policing immigration: police practices, the Lindela Repatriation 
Centre and the state of exception .............................................................. 77 
Chapter Four:  
Understanding the xenophobic attacks: citizenship, the politics of 
belonging and the state of exception ...................................................... 124 
Conclusion....................................................................................................... 170 
Bibliography .................................................................................................... 174 
Appendix: Interview schedule ................................................................... 187 
 
 
 vi 
Preface 
 
On the 25th of December, 2008 I was about to board a South African Airways 
flight to Heathrow Airport in London when I was stopped and interrogated by an 
immigration official. I had already passed through customs and passport control 
without a hitch, received an exit stamp in my passport and was inside the tunnel 
through which one passes to move from the airport into the aeroplane. At this 
point, I was asked by one official if this was the first time I was travelling to 
London. On answering that it was, I was told to move aside and wait to speak to 
his colleague, who was busy questioning a young lady, who seemed to be in some 
distress. Eventually the lady was allowed to pass and it was my turn. 
 
The official began by asking to see proof of my hotel booking. As I was attending 
a conference for which I had been provided with accommodation and was staying 
with friends subsequent to that I had no hotel reservations to present him with. He 
then asked to see my letters of invitation from my friends as well as from the 
conference. In my naivet? I did not have either of those on me. This aroused the 
official?s suspicions and after further questioning, including demands to see proof 
of the amount of money I was carrying with me as well as a key to my friend?s 
house in which I was to be staying after the conference, he declared that he was 
?not satisfied? and marched me back down the tunnel. He put through a phone-
 call and using my allocated seat number, had my suitcase removed from the plane. 
Whilst this was happening the boarding gates had been shut and the plane began 
the final stages before take-off. I thus missed my flight without being given a 
chance to verify my arrangements and was left with a packed suitcase, a 
conference to attend, transportation arranged at Heathrow, and a plane ticket not 
worth the paper it was printed on. 
    
In this instance, I had entered a space in which the whims and suspicions of an 
immigration official could decide my immediate circumstances and ability to 
travel and leave South Africa. I was in a space in which due process of law and 
 vii
 constitutionally guaranteed rights, such as the right of all South African citizens to 
exit the country, had been revoked in the name of immigration control. At the 
time, this seemed to me to be an extraordinary set of circumstances, and I was left 
cursing my fate at being in the wrong place, at the wrong time, and on the 
receiving end of the wrong official?s quest to assert his power and ego. However, 
once I had gained enough distance and perspective on events, I was able to note 
that what happened was not extraordinary. It was, rather, symptomatic of the 
inner-workings of the law and measures put in place to deal with migration and 
the movements of people in contemporary times. In this period, migration is a 
phenomenon that allows for a variety of extra-legal practices and spaces to be 
created.  
 
It is an element of contemporary society that allows states, their officials, and 
even citizens the power and ability to suspend the law and individual rights in 
cases in which they are ?not satisfied?, suspicious, or convinced that individuals or 
groups of people do not belong in or deserve access to a nation-state. The desire to 
maintain regulation over people and populations in this period of mobility and 
globalisation has brought about a situation in which the rule of law has become a 
fluid, malleable element, and is open to manipulation and can even be overlooked 
or overridden in cases in which the conditions imposed by officials and states are 
not satisfied. Thus, I am able to conclude that far from being extraordinary, my 
experience of the excesses of migration control is common-place, and is, in fact, 
tame compared to the abuses and sufferings experienced by others in the state-led 
quest for regulation and control over populations.  
 
Today, a situation has been created where the extraordinary or exceptional has, in 
fact, become common place. The erosion or suspension of the rule of law in the 
name of controlling migration and protecting the interests of nations and states has 
created a situation in which the law functions as an element of control, open to 
manipulation by those empowered by it. It thus functions in a double manner. On 
the one hand, the law, through its maintenance and the power it grants certain 
individuals and sectors of society, makes ongoing regulation and power relations 
 viii
 possible. At the same time, however, this ability to entrench and enforce power 
and societal control hinges on the ability to suspend or render the law non-
 applicable. The law, then, makes the exceptional normal, and can render the 
mundane exceptional. 
 
The study that follows is an attempt to both document and make sense of this and 
is an effort to understand the implications this has for the way the law, the state, 
nationhood, belonging, and migration are understood in broader social contexts.  
 
I would like to thank my supervisors, Jonathan Hyslop and Shireen Ally, for their 
guidance and advice throughout this process. I would also like to thank my family 
for the support and assistance they have given me, and Pfano, for helping me 
understand.     
 1 
Introduction 
 
Citizenship has emerged as one of the most important concepts and issues in 
contemporary times. It is an issue that holds a great deal of significance across the 
globe. A whole set of highly important sociological issues can be subsumed under 
citizenship. Within this term, issues around politics, nation-building, law and state 
power, social relationships, and contests over inclusion/exclusion play themselves 
out. It is thus a concept that encompasses several highly pertinent sociological, 
political and theoretical issues and therefore deserves a great deal of scrutiny. 
   
This study makes use of the analytical framework provided by the theory of the 
state of exception in order to investigate how the treatment of illegal immigrants 
has shaped modern conceptions of citizenship and has, in turn, been shaped by 
these conceptions. Through examining the treatment of those who are excluded 
from citizenship and the criteria and methods upon which this exclusion is based, 
I feel I am able to gain insights and understandings into how citizenship has been 
conceived in contemporary South Africa and what practices and social issues this 
conception has given rise to. By looking at those who fall outside of the ambit of 
citizenship, I believe I am able to gain insights into what citizenship has come to 
mean and symbolise in contemporary times.   
 
For the purposes of this study I will be using the theory of the state of exception, 
first developed by the German legal philosopher Carl Schmitt, and then expanded 
on by Giorgio Agamben. In Schmitt?s work, the state of exception is a politico-
 legal concept used to deal with threats to society and elements of the social and 
political order that fall outside of the ambit of normal law and order. The state of 
exception is a concept invoked when the normal proceeding of the law is 
suspended or deemed redundant (Agamben: 2005). It is thus a concept that deals 
with social and political enemies and threats to order that fall outside of the law 
and that cannot be dealt with by the normative application of the law (ibid). For 
Schmitt, the norm depends on the exception (Hirst: 1999). Thus, rule of law and 
political order can only be understood and exist in the face of challenges, threats, 
 2 
and social categories that fall outside of the politico-legal order. In this context, 
citizenship can only exist if there are exceptions to this concept. In the work that 
follows I conduct an investigation into the exceptions of citizenship, through the 
case study of illegal immigration into South Africa. By doing so I am able to 
interrogate the ideas and practices that shape and inform citizenship in the 
postcolony today.  
 
In South African law, illegal immigrants are defined as persons who have 
contravened the country?s immigration laws and are thus deemed to reside within 
South Africa illegally ? i.e. without the requisite permission of the state1. In law, 
they are defined as ?illegal foreigners?2 and are distinguished from both South 
African citizens and foreigners who have legal permission to reside in the country. 
They are thus a category of illegal people and the state requires a set of specific 
laws with which to deal with them. These laws are separate to the laws and 
procedures through which legal persons ? both citizens and foreigners ? are dealt 
with. They thus fall into an exceptional category, reserved for foreign criminals, 
?prohibited person[s]? and ?undesirable person[s]?3, and those who are deemed to 
threaten law, order, and society. It is this classification and subsequent treatment 
that recalls and possibly situates illegal immigrants within a state of exception.       
 
The state of exception is the product of modern discourses and assumptions about 
the nature of societies and people. An analysis of the construction, treatment, and 
constraint through which illegal immigrants are dealt with by state laws provides 
an insight into some of the issues, both theoretical and practical, that provide 
challenges and limitations to modern notions of citizenship. Through investigating 
and analysing the treatment and categorisation of and restrictions imposed on 
illegal immigrants by the state I hope to be able to critique modern notions of 
citizenship and the ways in which they are maintained and enforced. The work 
that follows is thus an analysis of the contemporary South African state?s 
                                                 
1
  Republic of South Africa. (2002).  Immigration Act 13 of 2002. Section 1. ?Definitions and 
Interpretations?. Government Gazette. no. 23478, 31 May.  
2
  ibid. 
3
  ibid. 
 3 
treatment, categorisation, and restriction of illegal immigrants and is done so in 
order to ascertain what the links between this and citizenship and nationhood are. 
 
As the state of exception revolves around an assumption about the nature of 
societies and what measures are needed to keep them intact, the possible influence 
this theory has on issues of nationality and immigration has a bearing on the 
manners in which citizenship is conceived and experienced. I consequently 
analyse the practices and notions of citizenship in South Africa today in order to 
understand which theories, concerns, and discourses they have been shaped by. In 
doing so, I hope to be able to generate a theory and interpretation of modern 
notions and practices of citizenship as they exist on both a practical South African 
and a broader, theoretical level.  
     
The construction of terms and categories such as ?illegal immigrants? and 
?citizens? necessitates the construction of boundaries and markers of difference. 
Schmitt was of the opinion that modern political practice and governance centred 
on the identification of the ?enemy? ? the class or classes within the population 
that represented serious threats to the rule of law and the sovereignty of the state 
(Balakrishnan: 2000). During the inter-war years in which he was writing, the 
disaffected and increasingly hostile working classes represented the most 
substantial threat to European state power and the societies over which these 
states presided. For Schmitt, ?after 1848 the proletariat was no longer an episodic 
threat to public order but its quasi-permanent enemy? (Balakrishnan: 2000: p.38). 
He thus argued that the modern European state needed to function in a semi-
 permanent state of exception or emergency to deal with this threat.  
 
In contemporary, ever-globalising society, the threat of proletarian revolution 
seems distant. Through processes of out-sourcing, transfers of capital and 
information across national borders, the rise of multi-national corporations, and 
large-scale migration, the united, uniform working class placed at the centre of 
working-class political movements and struggles has, in many people?s views, 
fragmented (Davidson: 2000; Castells: 1996; Laclau and Mouffe: 1985). This has 
 4 
left a void in class-politics and has ensured that the threat of class revolution, so 
ominous in Schmitt?s time, has fallen away. This has meant that the leading 
enemy of the modern capitalist state has been vanquished and does not occupy as 
prominent a presence in the social-political spectrum and friend-enemy binary. 
However, this has not led to the removal of this binary. Instead, the modern state?s 
preoccupation with the enemy has shifted to new terrain. Today, the illegal 
immigrant has emerged as one of the central ?enemies? threatening modern states, 
their sovereignty, and abilities to exercise power and control over societies and 
populations. 
    
There are several important reasons for the illegal immigrants? status as ?enemy?. 
My research is focused on uncovering and critiquing these reasons. The analytical 
framework provided by the theory of the state of exception will aid me in this as 
the state of exception is something that is invoked when a society and/or state is 
perceived to be under threat. Through the use of this theory, reasons as to why 
illegal immigrants have been constructed as threats to modern societies will be 
uncovered. I believe that these reasons are embedded in the nature of the modern 
state and the discourses in which it is framed and shaped. The theory of the state 
of exception will help me elucidate this, as this theory covers issues of social 
control and regulation, state sovereignty and power, and social, legal and political 
classification. 
 
According to Schmitt, ?the actions of the sovereign [? the state in contemporary 
times ?] must be governed by what is prudent to restore order.? (Hirst: 1999: p.12) 
An analysis of the public sentiment and discourse surrounding illegal immigrants 
in South Africa today reveals the extent to which they are considered threats to 
society. South Africa is increasingly seen as threatened, flooded, and swamped by 
illegal immigrants who are threatening and eroding the social fabric of post-
 Apartheid South Africa. The Comaroffs, for example, show how the furore over 
alien vegetation in the Cape is synonymous with xenophobia in South Africa and 
how the vegetation serves as a metaphor for invasion, threat, and takeover by 
illegal aliens of a human kind (Comaroff and Comaroff: 2001).  
 5 
 
The common public association of illegal immigrants with crime and violence has 
seen them emerge as scapegoats and unwanted, destructive intruders into the 
otherwise cohesive, peaceful ?rainbow nation?.  Like dangerous alien vegetation, 
illegal immigrants are seen as threats to the cohesive, uniform character of post-
 Apartheid South African society (ibid). The organic metaphor invoked by the 
Comaroffs is useful as it indicates how post-Apartheid South African society is 
increasingly romanticised as naturally diverse and harmonious, yet, at the same 
time, threatened by invasion. The primary threats to this natural harmony are 
crime and illegal immigration, which have emerged as synonymous terms.     
 
At the same time, people?s fears that illegal immigrants are crowding them out of 
labour markets and are draining already-limited economic resources and social 
benefits are put forward as partial explanations for the widespread and pervasive 
xenophobia in post-Apartheid South Africa (Nyamnjoh: 2006). In this case, illegal 
immigrants are portrayed and imagined as ?threats? to post-Apartheid South 
African society and the rights and entitlements newly inaugurated citizens 
deserve. They are thus envisaged as threats to the cohesion, promise, and structure 
of post-Apartheid society. This, then, necessitates the introduction of steps to 
restore social order. As the state of exception is invoked to deal with threats, this 
concept becomes increasingly relevant and applicable to the case of illegal 
immigrants in South Africa. The work that follows investigates the extent to 
which the state of exception can be used to describe the state?s dealing with illegal 
immigrants, and what effects this may have on the conception, regulation, and 
practices of citizenship.         
 
The denial of citizenship is made possible through different state mechanisms and 
practices. It is, primarily, an issue of policy, as state policies are used to determine 
who may and may not be regarded as a citizen and, consequently, who may or 
may not lay claim to rights within a country. As Staeheli points out, ?procedural 
elements [of citizenship] are codified through the state and the citizen is granted 
recognition in relation to the nation-state? (Staeheli: 2007: p.6). In other words, 
 6 
citizenship in contemporary times is not a natural right, it is a status that one can 
qualify for and that is awarded and mediated by the state. The procedures and 
criteria used to award immigrants citizen status are cased in the discourse and 
interests that govern modern societies and states. It is, primarily, in the area of 
policy formation and implementation that these interests and discourses are 
apparent. I thus start my analysis with a study of post-Apartheid immigration 
policies in order to analyse the discourses and interests that shape contemporary 
views of citizenship, and what this term and status entails. 
 
Whilst policies form the basis of state approaches to citizenship, they are enforced 
through several physical mechanisms. It needs to be emphasised that whilst in the 
work of Schmitt the state of exception is a formal, legal mechanism, for Agamben 
the state of exception has progressed beyond this, and has become an everyday 
form of governance (Agamben: 2005). It thus remains a legal concept for 
Agamben, but one that is in force constantly and that makes itself felt in the day-
 to-day workings of the state and its interactions with the population.   
 
The chief areas in which immigration policy and state attitudes to illegal 
immigrants are felt are policing methods and deportation/repatriation centres. 
These serve as the embodiment of the state?s response to illegal immigrants and 
are the areas in which the state and immigrants come into contact most frequently 
and violently. The Lindela Repatriation Centre has emerged as a notorious 
institution in South Africa and reports of the harsh treatment of those interred in 
the centre are frequent. The well-documented human-rights abuses that have 
occurred at this centre pose a challenge to the post-Apartheid government as it 
attempts to forge a culture and community based on human rights and inclusion. 
The contentious practices used at Lindela and in the day-to-day policing of 
immigrants on South Africa?s streets remain true tests of South Africa?s 
approaches to and tolerance of illegal immigrants.  I make use of research into the 
centre and police practices in order to illustrate and test the relevance of the state 
of exception in modern societies and how it has come to shape, and consequently 
hinder, approaches to citizenship and human rights. 
 7 
 
At the same time, the events of May 2008, in which groups of South Africans 
went on violent rampages throughout the country, looting, destroying property, 
attacking, and even killing people suspected of being foreigners have shown in the 
most stark and troubling terms the fact that violence, xenophobia, and the politics 
of inclusion/exclusion are not confined to the state alone. At the same time, 
however, the attacks remained informed or framed by contests over the state ? 
who has the right to lay claim to and benefit from the state ? and who deserves to 
be granted recognition and the right to belong through the state ? i.e. who is a 
citizen and who is not. Thus, an inquiry into the attacks needs to find ways to 
account for both the challenge to state power these represented, as well as the 
significance of the state within the attacks. In my analysis of the attacks, I attempt 
to test whether Agamben provides us with a framework for doing this.  
 
Thus, I make use of the theoretical framework provided by the theory of the state 
of exception to analyse the ways in which citizenship is constructed, regulated, 
and practiced in post-Apartheid South Africa. The policy analysis, research into 
the Lindela Repatriation Centre and police practices, and examination of the May 
riots provide case-studies for this purpose.  
 
This study is theoretical in nature and makes use of qualitative research. The 
primary research method used is expert choice interviews. In-depth interviews 
were conducted with several important figures, including lawyers active in the 
immigration field, local government councillors, academics, and activists. Whilst 
interviews were sought with government officials working in the Department of 
Home Affairs and immigration policy sector no cooperation was forthcoming. At 
the same time, this lack of cooperation from the Department of Home Affairs 
meant that access to facilities such as the Lindela Repatriation Centre was not 
possible. The research conducted in this thesis thus utilises work conducted by 
other research institutes and human rights monitoring bodies, in addition to the 
interviews conducted.  
 
 8 
Chapter One:  
Literature review and theoretical perspectives 
 
The terms ?illegal immigrants? and ?aliens? are constructions of a particular 
discourse or set of discourses. The creation of these terms and their entrenchment 
in society, in the functioning of the state and its relations with people and 
populations, as well as people?s own relationships with one another, is predicated 
on a set of assumptions, interests, agendas, and, in short, discourses. As such, 
there are several important sociological issues at work in the construction and 
enforcement of these terms and categories of people. These issues can be 
understood through different analytical lenses: theories of modernity and the state 
and the relationships and constructions this thrusts upon people; the character and 
construction of nations and the particular form of power and categories of people 
these constructions and nation-building projects create and disseminate; and South 
Africa today, as a case study of how the category of illegal immigrants is 
constructed and enforced.  
 
?Down in the flood?? Illegal immigration in South Africa 
 
Illegal immigrants are a category of people who occupy a primary position within 
public and political discourse and imagination in South Africa today. They have 
emerged as a new threat in the political and economic landscapes in democratic 
South Africa and it is a common perception amongst the media, the public, and 
some politicians that South Africa today is awash with these ?illegals?. For 
example, a recent newspaper headline screams, ?Zim tsunami floods SA? and the 
ensuing article claims that ?police have arrested more than 5 000 illegal border-
 crossers in [a single] fortnight? and that the number of illegal immigrants who 
make it into South Africa and do not get caught ?could be between 2 000 and 3 
000 a day?4. This article was written in the wake of the economic collapse in 
Zimbabwe and shows the high-profile position illegal immigrants occupy in 
                                                 
4
  Peta, B. Webb, B. de Lange, D. ?Zim tsunami floods SA?. article appearing in the Saturday Star.  
14 July, 2007. 
 9 
public imagination and discourse. The highly emotive language and extremely 
high numbers of people involved show that the issue of illegal immigrants is both 
a pertinent and emotive one in contemporary South Africa.  
 
Whilst the figures quoted in the above article are speculative, there is no doubt 
that South Africa is experiencing high levels of illegal immigration and that this 
presents the fledgling democracy with several important challenges. In the first 
years of democracy, the South African state expelled large numbers of foreigners. 
According to the Department of Home Affairs? statistics, 90, 692 illegal 
immigrants were repatriated in 1994. In 1995 the figure rose to 157, 084, and then 
to 180, 713 in 1996 (Peberdy: 2001: p.19). Again, in both 1997 and 1998 the 
figures rose to 176, 351 and 181, 286 respectively (Klaaren and Ramji: 2001: 
p.40). In addition, in 2000, during Operation Crackdown ? the South African 
Police Service?s ?crime blitz? begun in March of that year ? 7, 068 illegal 
immigrants were arrested in a single month (Klaaren and Ramji: 2001: p.36). 
 
This shows that there has been a steady increase in the numbers of illegal 
immigrants arrested in and deported from South Africa since the beginning of the 
democratic period. It also illustrates how illegal immigrants are included in 
categories of criminals as, during Operation Crackdown, illegal immigrants were 
targeted alongside other criminals and were arrested as ?a prophylactic measure? 
designed to protect South African citizens from criminality (Klaaren and Ramji: 
2001: p.37). It is thus apparent that immigration and the policing thereof is a 
contentious and increasingly prominent element of post-Apartheid South African 
society and attempts to regulate and exert control over it.  
 
South Africa is increasingly seen as threatened, ?flooded?, and swamped by illegal 
immigrants who are threatening and eroding the social fabric of post-Apartheid 
South Africa. In the riots of May 2008, illegal immigrants were singled out as 
threats to the post-Apartheid dispensation, as they were blamed by local 
communities and civil society organisations for usurping locals? positions of 
 10 
privilege and stealing jobs, women, state housing, and social services from 
deserving South African citizens.  
 
At the same time, xenophobic sentiments and ?alarmist fantasies about unwanted 
foreigners? are rife within the media, public discourse, and even amongst the 
government (Murray: 2003: p.440). According to Oucho and Crush, the South 
African government has long opposed free movement or uncontrolled migration, 
and has done so through the backing of ?government funded research?, such as 
the 1995 report by the Human Sciences Research Council, entitled ?A Research 
Review of the Policies Surrounding the Issue of the Free Movement of People 
Across International Borders with Specific Reference to Southern Africa and the 
Particular Effect Thereof on South Africa?, which was used by the South African 
government to resist and reject proposals for freer movement of peoples across the 
Southern African Development Community (SADC) region (Oucho and Crush: 
2001: p.150). According to Oucho and Crush, the post-Apartheid South African 
government has adopted a ?position that is based more on powerful anti-
 immigrationist [sic] discourse than on any systematic analysis? (Oucho and 
Crush: 2001: p.140). 
 
Michael Neocosmos too has shown how the post-Apartheid government has 
adopted a hostile approach to immigration and has circulated a continuously 
xenophobic discourse throughout the country. In his study, Neocosmos focuses 
not only on documenting the proliferation of xenophobia and hostility towards 
foreigners in South Africa, but attempts to analyse this through the state and its 
dissemination of what he terms ?state xenophobic discourse? (Neocosmos: 2006).  
 
This has created a situation in which xenophobia, anti-immigration sentiments and 
discourses, and hostility towards foreigners are rife within South Africa. These 
sentiments have shaped many state responses and approaches and have come to 
work their way into the relationships between peoples within South African 
communities. A situation has been reached in which immigrants are portrayed and 
have come to exist as concrete ?outsiders? and threats in South Africa. 
 11 
 
The ?threatening? nature of immigrants exists on many levels. On the one hand, 
they threaten the promise of the ?new? South Africa, as they are believed to 
compete with locals for economic resources, job opportunities and social services, 
as shown by Nyamnjoh (2006). At the same time, they are also seen to threaten 
the state?s ability to create the ?new? South Africa and deliver benefits and 
services to the deserving citizens. As the then Minister of Home Affairs, 
Mangosuthu Buthelezi, declared in 1997, steps must be taken to ensure that illegal 
foreigners and immigrants are prevented from accessing social services ?in short 
supply to our own people? (Peberdy: 2001: p.22).  
 
It thus becomes apparent that the alarmist, xenophobic discourse that has swept 
through South Africa characterises immigrants as threats to the citizenry and the 
state. The media, the government, and the general public have been swept up in 
this discourse, and have led South Africans to believe they are indeed in the midst 
of a flood of immigration. Crush (2000), Harris (2002), and Palmary (2002) have 
all documented the extent of violence against foreigners in local communities and 
have shown this to be a prevalent scourge in the post-Apartheid period.  
 
This discourse and tide of fear and hostility towards foreigners reached its peak in 
May 2008, as rioters swept through regions of South Africa, leaving over 50 dead 
and thousands displaced as they hunted for foreigners and illegal immigrants in 
their communities. This violence took hostility towards foreigners to new levels in 
South Africa and exposed the alarming extent of these violent sentiments and 
resentments in this country. Through these riots, the extent of hatred, fear, and 
animosity towards immigrants in South Africa became clear, and the effects of the 
alleged ?flood? on local populations were brought into the spotlight.  
 
This flood of immigration has thus come to play a central role in shaping 
existence and experiences in contemporary South Africa. It has been documented 
well through several sources, including Nyamnjoh, Neocosmos, the Comarroffs, 
 12 
the South African Migration Project, the Forced Migration Studies Unit at the 
University of Witwatersrand, and the South African Human Rights Commission.  
 
Whilst this body of work is extensive, it remains, on the whole, predominantly 
descriptive and has focused on documenting the plight of immigrants in South 
Africa, the predominance of xenophobic sentiments in the country, and making 
recommendations to the South African government. However, whilst these are all 
important areas, there are several other important issues at work that can be 
analysed through the study of immigration. Primary among these is the role and 
nature of the state in the construction of the population/nation in contemporary 
times. In addition, a study of immigration in South Africa reveals several 
important insights into the nature of state power, sovereignty, politics and the law; 
how nationhood has been conceived and practiced; and what citizenship itself, as 
a concept and mode of being, means.   
 
The project of modernity 
 
Foucault argues that, in modernity, enemies and threats are defined in new ways 
which are distinct to modern discourse (Foucault: 2007). These distinctly modern 
definitions produce similarly distinct methods of dealing with these threats. The 
singling out of enemies and attempts to regulate society and people in accordance 
with definitions of what constitutes a threat is a feature of the project of modernity 
and modern discourse. It is a feature related to the modern project of shaping the 
ideal society. According to Foucault, this tendency makes itself felt through the 
disciplinary mechanisms prevalent in all modern societies. Although pre-modern 
societies contained severe and well-enforced modes of discipline, Foucault argues 
that the objects and objectives of modern and pre-modern methods and 
mechanisms of discipline differ greatly. He argues that whilst pre-modern 
discipline centred on preserving social hierarchies and orders that were outside of 
humanity?s ambit, discipline in modernity focuses on preserving the society 
created by humanity, in-line with people?s desires, assumptions, and capabilities 
(Foucault: 1991).  
 13 
 
This distinction is illustrated by the two methods of discipline Foucault describes 
at the very beginning of his book Discipline and Punish. The first method he 
describes is a public execution, aimed at torturing and obliterating an attempted 
regicide. The condemned Damiens is put to death under an accusation of 
attempting to murder a monarch, and is thus being punished and executed for 
daring to threaten the hierarchical order of society. In this instance, the objective 
of punishment is to protect monarchical power and to warn people against the 
folly of threatening the order of things. In this case, power and the object of 
discipline and punishment are personalised in both the victim and the order being 
protected and upheld (ibid). 
 
In contrast, modern methods of discipline and punishment, Foucault argues, have 
moved away from the personalised and now exist in multiple, dispersed, and 
generalised forms. The prison, he argues, is designed to eliminate the undesirable 
members of society and is a mechanism used to reform people. It is thus part of a 
complex designed to create and protect society as a whole, rather than the 
personalised social order of the monarch (ibid). The shift from the personal to the 
general is greatly significant, and illustrates a distinct feature of modernity.  
 
Modernity is a period in which people begin, arguably, forging their own paths 
and societies. It is thus a period in which everything, including the social order 
itself, is subjected to humanity?s will and creative abilities. Rather than a 
fatalistic, monarchical society, modernity establishes a humanistic civilisation; the 
objective of discipline and punishment, then, is not the preservation of an other-
 worldly order, but society itself. The social order is regarded as something that, 
whilst still in need of protection and enforcement, is the product of human 
abilities and agency and that can be forged accordingly. Thus, the mechanisms of 
discipline and punishment are, in modernity, aimed at protecting and entrenching 
the man-made social order ? the modern society. 
 
 14 
Within the modern society there are manifold disciplinary mechanisms designed 
to protect society. These include the prison complex as well as the schools, places 
of work, and social clubs and settings in which socio-economic hierarchies, roles, 
and statuses are moulded and protected and people are taught to internalise the 
ideals of the societies in which they live and the roles accorded to them. Another 
integral part of modern disciplinary mechanisms is political and legal language, 
laws, and power. The state politico-legal complex exists in modernity as the 
sanctified ruler and is tasked with protecting society for the good of the populace. 
It thus forms part of the modern disciplinary mechanisms designed to protect 
society from the forces which threaten the order of things and the preservation of 
society. The terms ?illegal immigrants? and ?aliens? are products of this mode of 
discipline and are, thus, distinct products of modernity. 
 
Illegal immigrants are produced (and reproduced) and disciplined by both social 
and state institutions, political and legal language, and state policies. With regard 
to the former, an entire complex of institutions of surveillance, internment and 
punishment has arisen in modernity. These institutions and mechanisms take the 
form of border controls and check-points and the repatriation centres in which 
illegal immigrants are interred before deportation. All of these serve as 
mechanisms used to discipline, unearth, and restrict the modern state?s enemies. 
Their existence and functioning is predicated on the existence of an enemy, one 
that threatens public and social order and that needs to be dealt with as such. At 
the same time, numerous state laws and policies are devoted to illegal immigrants, 
and serve to describe who falls into this category (i.e. to create it) and to establish 
the treatment and modes of discipline to which they must be subjected. In this 
way, institutional mechanisms are built on the foundations of law, policies and 
language, and all serve to distinguish the category of enemies/illegal immigrants 
in contemporary society.  
 
 
 
 
 15 
The state and the nation 
 
The emergence and construction of the term ?illegal immigrant? is a product of 
modernity and the rise of the nation-state. The two ? modernity and nation-states 
? are intimately linked. The rise of the nation state can be seen to coincide with 
the Enlightenment period. This was a period in which people began to assert their 
creative abilities and capacities to shape society in accordance with their own 
beliefs, aspirations, preferences, and interests. The Enlightenment is commonly 
viewed as the beginning of humanity?s triumph over superstition and fatalism, and 
the rise of rationality (Seidman: 2004). This rationality allowed people to pursue 
their own interests and visions of what society should be. As Foucault asserts in 
Discipline and Punish, the shift in society?s view that emerged in modernity 
manifests in people?s ? specifically authorities? ? attempts to construct and 
maintain society in accordance with their views of what the ideal society should 
be (Foucault: 1991). Evidence of this project can be seen in the multiple 
mechanisms, objects, and elements that make up modern society. 
 
The link between the rise of the nation-state and the Enlightenment and project of 
constructing the ideal society is apparent, on a theoretical level at least, in the 
manner in which nation-states have been constructed and delineated. In Nations 
and Nationalism Since 1780: Programme, Myth, Reality, Hobsbawm argues that, 
starting with the French Revolution in 1789 and the Age of Revolution in 1830, 
the nation began to be portrayed as a homogenous entity. Previously the nation 
was a political entity, made up of people who came together under the control of 
the state and political authorities. Nation, as a concept and social unit, was 
congruent with state (Hobsbawm: 1992).  
 
With the rise of nationalist politics and aspirations, however, ?the nation? became 
synonymous with ?the people?. The nation/people were the heirs and foundations 
of the state. In the previous equation, the state was the basis for identification, 
political/administrative sovereignty, and national identity. In the nationalist 
equation, the order was reversed and the nation/people became the authors of the 
 16 
state. In this way, it became possible for stateless peoples, such as the Basques 
and Jews, to lay claim to nationhood without a state to call their own (ibid). This, 
then, is symptomatic of the new-found ability to shape and determine nationality, 
identity, and society itself in accordance with people?s aspirations and beliefs. 
With the rise of Enlightenment thought, people began to assert the ability to forge 
and shape their own identities, nations, and societies, rather than accept them 
passively. 
  
The French Revolution introduced the ideal that the nation should be ?one and 
indivisible.?(ibid) In an era of growing nationalist sentiments and aspirations, this 
led to the inculcation of the aspiration to create homogenous nation-states, in 
accordance with people?s assumptions about what the structures and ideals of 
society should be. For example, the French Revolution was, on a basic level, a 
revolt against unchecked authority and an attempt to create a society founded on 
the ideals of Liberty, Equality and Fraternity. The ability to determine and define 
membership within the state is a consequence of the modern project of 
constructing and shaping society. Thus, the categorisation of legal and illegal 
immigrants and citizens and non-citizens is symptomatic of the rise of modernity 
and the ideals and projects this has introduced into societies. 
 
A consequence of the pursuit of the ideal society has been the rise of new, 
improved, and greatly advanced methods of social control. As Foucault points out, 
modern societies are home to multiple, diverse, and dispersed methods and 
mechanisms of social control and power (Foucault: 1980). For Foucault, modern 
methods of control extend from prison complexes, to schools and industries, and 
even to the manners in which both social and scientific knowledge is pursued and 
disseminated. All of these features of modern societies are, for Foucault, cased in 
and shaped by discourses and power that give rise to and cement social control.  
 
This element of social control can be seen as prevalent within nation-states and 
their attempts to assert their sovereignty, power, and control over the societies 
which fall within their borders. If the rise of nation-states is to be seen in the 
 17 
context of increased attempts ? and abilities ? to order and control societies, then 
features of nation-states too can to be seen in this context. For example, the ability 
to define and determine who does and who does not belong within a nation-state 
is an instrument of social control. Thus, categories such as ?legal? and ?illegal?, 
?prohibited?, ?undesirable?, and ?citizens? all belong to the mechanisms of control 
and power. 
 
This is a power that is today held with the most authority by the state. As Foucault 
argues, in modernity, the state is confronted with the ?problem of the population? 
and how best to manage, produce, and control this (Foucault: 2006: p.141). For, 
with the rise of techniques and modes of discipline, as well as the modern 
preoccupation with the production of the ideal society, ?The population is 
pertinent as the objective, and individuals?are no longer pertinent as the 
objective, but simply as the instrument, relay, or condition pertinent for obtaining 
something at the level of the population? (Foucault: 2007: p.42). The 
nation/population, then is the object of power, and is subjected to all the diverse 
and dispersed techniques, mechanisms, and tactics of power possessed by the 
state.  
 
In this way, sovereignty, which grants a nation-state the right to admit or refuse 
admittance to foreigners, and consequently to determine the nature and character 
of the social body, becomes a measure of social control and assertion of state 
power. As Castles points out, citizenship is an ambiguous concept as it contains 
possibilities for both inclusion and exclusion: ?the citizenship of one type of 
person implies the non-citizenship of others? (Castles and Davidson: 2000: p.10). 
In this way, citizenship, as it relates to membership of a nation-state and political 
community and is a product of sovereignty, is symbolic of the modern attempt to 
regulate and control societies, and shape the character of the social body and the 
identities of those who comprise it.          
     
Categorising people and inserting divisions into societies has been a feature of 
attempts to modernise and control societies in Africa since colonial times. This 
 18 
tendency manifested itself most infamously in the system of divide and rule 
applied to settler colonies, especially those under British control. This policy of 
divide and rule is captured well by Mamdani through his conception of the 
?bifurcated state?, the state in which different sets of rules apply to different 
members of the population (Mamdani: 1996).  
 
In the colonial period, legal and social categorisations were based on citizen and 
subject distinctions. According to Mamdani, citizens were those who were 
governed and empowered by Western-style laws and systems of governance, 
whilst subjects were those who remained in a rightless state and could make no 
claims to law, rights, and systems and processes of governance. In this case, 
citizens were entitled to the benefits and norms of rights and privileges, whilst 
subjects provided the exception to this status, and were exempt from rights and 
subjected to harsh, arbitrary and coercive treatment by the colonial state (ibid). 
Subjects were thus placed in what can be deemed a state of exception. 
 
Whilst progress has been made in eroding the citizen-subject distinction in post-
 colonial states, elements of this still persist. In South Africa, this bifurcation is no 
longer internal, however, but has taken on an external, international character. 
According to Nyamnjoh, the new subjects in post-Apartheid South Africa are 
illegal immigrants. They exist in a state of subjection or exception as they are 
exempt from many of the rights, privileges, and norms of governance that have 
come to characterise post-Apartheid society. They are denied many of the rights 
and privileges granted to legal citizens and are subject to a set of laws and 
practices that are at odds with the laws used to regulate and protect legal citizens 
(Nyamnjoh: 2006).  
 
Here it becomes apparent that they exist under a set of laws that do not apply to 
the legal population ? the citizenry. At the same time, state and police practices 
entrench illegal immigrants? status as subjects and outsiders. There are numerous 
reports of harassment by the police, and the government has even called on South 
African citizens to play leading roles in identifying and routing out illegal 
 19 
immigrants in their communities (Klaaren and Ramji: 2001). Again, this serves to 
entrench illegal immigrants as outsiders and subjects within the post-Apartheid 
state. They are constructed in opposition to legal citizens and are placed at the 
mercy of the law and the empowered citizenry. It is thus clear that the case of 
illegal immigrants makes the citizen-subject division an on-going factor in post-
 Apartheid South Africa. 
 
This is a division that is mediated and determined by the state. Today, then, the 
nation ? and all the politics around inclusion, exclusion, conformity, and control 
that is contained within this ? needs to be seen not only as Anderson?s ?imagined 
community? (Anderson: 1991), but as the product of state power.  
 
Migration and state power 
 
One of the central mechanisms through which state power and control over 
populations is carried out is migration. This is the process whereby people 
traverse borders and boundaries and settle, either permanently or temporarily, in 
new locations, regions, and countries. It is a process driven by people?s searches 
for better living standards; political, ecological and demographic pressures may 
force people to seek refuge outside their own countries, or they may choose to 
migrate in the belief that better standards of living and lifestyles are available 
elsewhere (Castles: 1993). The one common theme in migration is that 
?settlement is closely linked to employment opportunities and is almost always 
concentrated in industrial and urban areas.? (Castles: 1993: p.4) Since 1945 and 
most particularly since the mid-1980?s, migration has been taking place at an 
increasing rate. It is a process that is linked to globalisation, as ?large scale 
movements of people arise from the accelerating process of global integration? 
(Castles: 1993: p.3); a global society characterised by fluid communication 
channels and economic markets has also given rise to fluid and mobile 
populations.  
 
 20 
And whilst this fluidity and mobility is often a threat to states and their ability to 
control territories and populations ? in other words, their sovereignty ? it is also a 
process that offers new opportunities for the exercise of this power. As migration 
entails the movements of people across boundaries, it is a process that allows the 
mechanisms of identification and surveillance to come into play most forcefully. 
Apart from borders, there are other mechanisms at the state?s disposal in the 
struggle to keep unwanted immigrants out and ensure that control over the 
population is maintained. These include passports and identification documents. 
 
As Torpey points out in The Invention of the Passport: Surveillance, Citizenship 
and the State, passports and identification documents have emerged in order to 
make state surveillance and control over people?s movements possible (Torpey: 
2000). These documents serve as a means of identification and to prescribe a 
particular identity for their bearers. The identities they prescribe are based on the 
state?s relationship with and obligations to different people. They determine what 
obligations a state has towards people as well as what rights people enjoy within 
the confines of a particular nation-state. As such, passports and identification 
documents have emerged as markers of citizenship. One cannot vote, collect 
pensions or welfare payments, or engage with state administrative machinery 
without them. As such, they serve as documents designed to regulate people and 
populations ? a central concern of modern states.  
 
Torpey argues that passports and identification documents were designed to 
provide authorities in early modern Europe with the devices and abilities to 
exercise more thorough control over the populations over which they enjoyed 
jurisdiction and power. According to Torpey, European rulers needed to maximise 
this control in order to maximise the productive power and resources they could 
extract from the subjected populations. He argues that passports and identification 
documents were vital in the conscription process and the formation of large 
armies and in dictating who could work where and how (ibid).  
 
 21 
They thus served as prime methods of population regulation and control. He also 
points out that one of the driving motivations behind modern European states 
establishing and enforcing the use of identification documents and passports was 
so that the numbers of poor and ?public charges? could be regulated and kept to a 
manageable level (ibid). Here, they are used to determine who can and cannot 
make claims to and demands of the state; these documents serve as a means of 
establishing the limit of states? obligations and who can and cannot enjoy the 
rights and privileges of citizenship. 
 
At the same time, Torpey shows that passports were used to enhance state?s 
abilities to regulate populations so that they could extract maximum economic 
resources out of them. Identification documents were the mechanisms that made 
both mass conscription and taxation possible. They were also central in the 
transition from feudalism to capitalism, as they altered people?s allegiances and 
identities; they served to transform people from serfs and peasants tied to the land 
and nobility into free labourers, defined by their membership in a particular 
nation-state (ibid). They were thus mechanisms central to the development and 
expansion of capitalism in modern Europe and throughout the world. 
 
Thus, it emerges that passports and identification documents are mechanisms used 
to confer particular identities on people and to allow states to manage populations 
and movements of people. They not only define people as members of particular 
nationalities, they define and classify them as citizens and non-citizens and thus 
dictate their relationships to the state. The relationships that this form of 
regulation and classification gives rise to are enforced in different manners. It is 
initially imposed and framed in a policy framework and later implemented and 
made real through state practice.  
 
Just as passports and identification documents allow states to exercise control 
over the movements of populations, so too does the legal framework of a state. 
Illegal immigrants are products of the process of migration. Although illegal 
immigrants can be seen to challenge and threaten state power as they move 
 22 
against the state?s wishes and without the state?s permission, they are, in fact, 
products of state power too. This is because the term ?illegal immigrants? is 
constructed by the state, and is used to assign a particular status to this category of 
people. This is a status that holds much significance, as it designates particular 
roles, relationships and subjectivities to the people who fall into this category. 
 
We see this in Peberdy?s claim that current South African immigration policies 
and the practices used to enforce them ?criminalize? immigrants in this country 
(Peberdy: 2001: p.25). This point is made clear in police operations, such as 
Operation Crackdown, in which illegal immigrants are arrested alongside 
criminals (Klaaren and Ramji: 2001). Here we see that being designated an 
?illegal immigrant? by the state confers a particular identity onto people who fall 
into this category, and allows the state to exercise again control over them.  
    
This state control and defining of people is carried out through policing practices 
?on the ground?, but is made possible first and foremost through the law. Klaaren 
and Ramji assert this when they assert that ?The illegal immigrant is not merely 
beyond law but is instead against law? [emphasis added in original] (Klaaren and 
Ramji: 2001: p.40). Here we see that the law itself is a mechanism of state power 
and is used to ensure that states maintain control over people and populations. It is 
the law that makes categories such as citizens and illegal immigrants possible, and 
is thus a mechanism that allows for the constant exercise and enforcement of state 
power, even, or especially, in the face of threats.   
 
The state of exception, citizenship and the ?rainbow nation? 
 
Carl Schmitt has provided a valuable and insightful framework through which the 
issue of illegal immigrants and their treatment in modern times can be understood. 
For Schmitt, modern political practice and governance centres on the 
identification of the ?enemy? ? the class or classes within the population that 
represents serious threats to the rule of law and the sovereignty of the state 
 23 
(Balakrishnan: 2000). Today as discussed earlier, the illegal immigrant has 
emerged as one of the central ?enemies? threatening modern states 
 
It is apparent that illegal immigrants are regarded as a new category of enemy in 
contemporary times as they fall into a political and legal category designed 
specifically to deal with threats to society and its order. As Castles points out, 
?Migrants and minorities are seen as a danger to living standards, lifestyles and 
social cohesion? (Castles: 1993). They are also threats to state power and ability 
to regulate populations and territories as their constant movement across 
boundaries places strain on state mechanisms of surveillance. They thus arguably 
fall into the category of laws designed to deal with threats to and enemies of 
society. This category can be classified and understood as the ?state of exception?. 
This is a legally-defined space in which the common rule of law and protection of 
human rights, allegedly characteristic of liberal democratic states, is removed or 
annulled. 
 
The state of exception, according to Agamben, has its roots in early forms of 
public mourning to commemorate the deaths of Roman Emperors or similar states 
of crisis or emergency (Agamben: 2005). It is, then, a state in which the usual 
course of law has been suspended or is deemed to not apply. This suspension of 
common-place law and governance is invoked in order for the authorities to 
exercise total control over a population and is thus a period that coincides with 
rule by decree and suspension of the normal, liberal functioning of the democratic 
state; it is an ?extraordinary political measure? used to protect society and cope 
with internal disorder (Agamben: 2005: p.5).  
 
It thus has its origins in and bares similarities to pre-modern, monarchical times, 
as it is a period in which individual rights and protections are removed and the 
state has full coercive control over the population, as well as to a state of 
emergency. However, despite similarities, the state of exception remains a modern 
phenomenon and is an important indicator of modern discourse, distinct from a 
state of emergency in important ways.  
 24 
 
For Agamben, what distinguishes a state of exception from a state of emergency is 
that, whilst the latter is an extreme emergency measure invoked by the state in 
times of crisis that entails the formal suspension of the normal course of law, the 
former, the state of exception, has become, as he terms it ?a paradigm of 
government? ? a means of governing and controlling societies that is not a formal 
suspension of the law, but rather something that is actually written into and a 
function of the law itself (Agamben: 2005). The state of exception is a state in 
which the law legally does not apply.   
 
The state of exception remains fundamentally a construct and product of 
modernity as it exists in order to protect a pre-determined, enclosed society. It is a 
legal framework designed to ?erase any legal status of the individual? in order to 
protect society as a whole from internal threat (Agamben: 2005: p.3); it is invoked 
?for the good of all? and to protect the modern society constructed by people. 
Thus, whilst the state of exception appears ?anti-modern? in its erosion of rights 
and the elevation, even sanctification of individual, presidential power, it is firmly 
a product of modern discourse.  
 
The state of exception is utilised to protect society as a whole. It is, then, a 
political-legal mechanism which has as its object the population. This is a modern 
feature, it needs to be remembered, as, in modernity the population is the focus of 
control. As Foucault argues, ?the transition which takes place from the eighteenth 
century from an art of government to a political science, from a regime dominated 
by structures of society to one ruled by techniques of government turns on the 
theme of population?. (Foucault: 2006: p.141). As Agamben sees the state of 
exception as an everyday technique of government, it becomes clear that it fits 
into Foucault?s schema and is then, an entirely modern concept and strategy of 
governing and controlling populations.       
 
A further significant reason for the state of exception existing as a product of 
modern discourse is that it entails the creation of binaries and categories of 
 25 
people. According to Schmitt, the creation of binaries and categories of people is 
a necessity in modernity, as it allows societies to identify their friends and 
enemies. For Schmitt, the friend/enemy binary is a matter of interests:  friends 
have similar or compatible interests, whilst an enemy?s interests are always ??a 
negation? of one?s own interests (Balakrishnan: 2000: p.106). Thus, it becomes 
impossible for modern states to tolerate and coexist with enemies. This has 
become apparent in contemporary times, as illustrated by ideological conflicts 
such as the Cold War and the current war on terror. Both conflicts have been 
characterised by the view ?you are either with us or against us?, and this has 
shaped global politics, alliances, and practices.  
 
These modern conflicts are clear examples of the friend/enemy binary that 
characterises modern political society. At the same time, this binary has extended 
into societies on micro-levels too. It is a binary that not only describes macro 
political relationships, but individuals as well. This is apparent in the rise of the 
term ?illegal immigrant? and its use in classifying and identifying individuals.     
 
The term ?illegal immigrant? plays a vital role in the construction and maintenance 
of binaries within all modern states and for my concerns in South Africa in 
particular. On the surface, post-Apartheid South Africa appears to be a state and 
society at pains to remove social and political divisions and binaries. It has 
established itself as a state committed to principles of inclusion, recognition of 
and respect for difference, and characterised by a nation-building programme 
premised on that acceptance and celebration of national diversity. For example, 
the African National Congress (ANC) government has committed itself to a 
programme of national inclusion and transformation based on non-racialism. This 
is a programme that seeks to promote a shared national sentiment amongst all 
South Africans, regardless of their racial profile, religious beliefs, or ethnic 
affiliation (Sharp: 1988).  
 
As the Comaroffs point out, citizens in modern nation-states such as South Africa 
?seem widely able to re-imagine nationhood in such a way as to embrace the 
 26 
ineluctability of internal difference?; terms such as ?multiculturalism? and ?the 
rainbow nation? have become commonplace and have even emerged as defining 
labels for the post-Apartheid nation-state (Comaroff and Comaroff: 2001: p.635). 
 
Through the South African Constitution and Bill of Rights, people?s rights to and 
freedoms for group affiliation, cultural practice, and freedom of identification 
have been preserved (Simeon and Murray: 2004).  However, despite the efforts to 
embrace and accommodate difference, binaries still exist and remain prominent in 
modern nation-states in general and contemporary South Africa in particular. 
These binaries are felt and constructed along lines of citizenship and nationality. 
Thus, immigrants residing in the South African ?rainbow nation? are not easily or 
readily accorded a place in the nation.  
 
They continue to be regarded with hostility and contempt, and are hounded by 
both police and citizens. In addition, the rights and entitlements belonging to 
South African citizens are denied them and made inaccessible. This illustrates, on 
both a legal-technical level, as well as on a relational, social level, the binary 
between legal citizens and ?illegal enemies? in contemporary South Africa. This 
binary, it must be reiterated, is the product, first and foremost, of the law. Illegal 
immigrants are a category of people constructed by the law, illustrating the role 
this feature of modern states plays in the production, control and maintenance of 
the population.  
 
Democracy, homogeneity, sovereignty and citizenship 
 
Whilst inclusion, multiculturalism, and the rainbow nation may be defining 
principles and ideals, this inclusion has limits. The privileges of inclusion are only 
granted to those who comply with the dictates of the modern state. Schmitt argues 
that liberal democracy, as strived for by many nation-states today, can only 
function if the homogeneity of the population is preserved. For him, the successful 
functioning and preservation of democracy requires ?first homogeneity and 
second?elimination or eradication of heterogeneity? (Mouffe: 1999: p.39). This 
 27 
argument arises out of Schmitt?s assertion that politics and political society are 
characterised by friend/enemy distinctions and struggles. 
 
In most Western cases, the push for homogeneity has taken on a cultural and 
ethnic form. The nation is portrayed, through the processes of mythical creation 
and dissemination, as ethnically and culturally homogenous. In the era of mobility 
and globalisation, immigration and its regulation has become an area of central 
concern for states and governments as immigration and ethnic diversity threaten 
the idea of the nation as homogenous and unified. The process of settlement and 
immigration creates a population ?without common ethnic origins? and thus 
threatens to erode the (putatively) homogenous nature of the nation-state (Castles: 
1993: p.14). Thus, methods of regulating immigration and ensuring that only the 
?right? kind of immigrants are accepted have come to prominence.   
 
In the new, multicultural South African state and ?rainbow nation?, efforts to 
preserve homogeneity appear to be at odds and incompatible with the principles 
and nation-building programme of the state, founded as it is on diversity and 
multiculturalism. However, the Schmittian binaries and quests for homogeneity 
do still apply; they make themselves felt in the citizen/illegal immigrant or 
citizen/subject distinctions that persist in post-Apartheid South Africa. Schmitt 
asserts his argument about the need for homogeneity in democracies when he 
argues that ?Every actual democracy rests on the principle that not only are equals 
equal but unequals will not be treated equally? (Mouffe: 1999: p.39). In this case, 
homogeneity is preserved through the creation of categories of equals and non-
 equals i.e. equal citizens and unequal subjects or illegal persons. 
 
At stake in this modern political struggle between friends and enemies and the 
quest for homogeneity is the sovereignty of the state. States have emerged as the 
leading authorities in modernity and consequently have a firm grip on several 
techniques of control and power. As Foucault?s analysis of discipline, 
punishment, and control in modernity shows, control and power have become 
 28 
centred on forging and moulding societies in accordance with dominant 
discourses. The pursuit of homogeneity is a further example of this. 
 
The ability to create a homogonous social body is an issue of state sovereignty, as 
it gives states the ability to pursue the Schmittian ideal of a society constructed 
according to social and political interest. Thus, in deciding who is and who is not 
an enemy, and in determining the necessary measures to cope with and eliminate 
enemies, states are engaged in struggles to assert their sovereignty and abilities to 
shape and influence the social bodies over which they have and continuously seek 
control.  
 
Sovereignty can be understood as ?the right of self-government within and over a 
given homeland? (Coleman and Higgins: 2000: p.53). It is thus a political and 
legal tool and right granted to states to enable them to control the territories and 
populations over which they have been given authority. Linked to this authority, 
then, is the pursuit of the homogeneity upon which all modern states, democratic 
or not, can be said to rely. This is pursued and exercised through mechanisms 
such as citizenship, which defines who is and who is not part of the 
citizenry/nation-state, and what expectations consequently fall upon them. In 
defining friends and enemies, legal members of the population and criminals or 
?illegals?, states are exercising their sovereignty and consequent ability to control 
populations.             
 
Thus citizenship has come to serve the interests of democracy, sovereignty, and 
the preservation of the homogeneity upon which it is built. The Comoroffs echo 
Schmitt when they state that in modern nation-states, despite the possibilities of 
numerous, autonomous, and self-defining identities granted to individuals, people 
still remain divided by one simple distinction: one is either ?an autochton or an 
alien? (Comaroff and Comaroff: 2001: p.635); one either belongs to the 
empowered citizenry or is an unwanted intruder, one is either a citizen or a 
subject. Through this statement, it becomes apparent that the principles and 
practices of inclusion, diversity, and acceptance that the new South African state 
 29 
is founded on are limited, and only apply in the cases in which people meet the 
criteria for inclusion as citizens. 
 
We can see the quest for homogeneity at work through the way in which the 
current government has proposed including a Bill of Responsibilities to be taught 
in the school curriculum5. This Bill stresses the responsibilities and obligations 
that fall upon the new generation of citizens in the new South Africa. The primary 
concern of this Bill is to create a citizenry that will uphold the Bill of Rights and 
honour the new South African nation through respecting the rights of others and 
committing themselves to the creation of a non-racial, inclusive, tolerant 
?rainbow? nation. For example, the first responsibility listed by the new bill reads: 
 
?The right to equality places on me the responsibility to treat 
every person equally and fairly, and not discriminate unfairly 
against anyone on the basis of race, gender, religion, national, 
ethnic or social origin, disability, culture, language, status or 
appearance.?6  
 
In addition, the preamble to the Bill reads, in part: 
  
?I accept the call to responsibility that comes with the many 
rights and freedoms that I have been privileged to inherit from 
the sacrifice and suffering of those who came before me.?7  
 
From this it can be seen that the state is engaging in a very deliberate attempt to 
create a nation that fits in with very specific ideals and agendas. The new 
generation of citizens that the state is attempting to create are portrayed and 
constructed as the heirs of those who suffered and sacrificed for freedom and 
human rights. In this conception, to be a citizen of the new South Africa is to 
                                                 
5
  da Costa, W. ?Schools to teach Bill of Responsibilities?. article appearing in The Star. Tuesday, 
19 February, 2008.  
6
  Republic of South Africa. Department of Education. (2008). ?A Bill of Responsibilities for the 
Youth of South Africa?.    
7
  ibid. 
 30 
honour and defend rights and freedoms, to vote, to participate in and shape a free 
society, to help create the new South African nation. In this respect, to be a citizen 
is to continue the quest of the ANC for a national democratic revolution; it is to be 
what Chipkin has identified as the national democratic subject or the ?national 
revolutionary citizen? (Chipkin: 2007).  
 
The national democratic subject is the member of post-Apartheid South African 
society who has been tasked with and is engaged in continuing the legacy of those 
who fought for freedom and equality, and who is consciously engaged in the 
process of building the new nation on these pillars. As Chipkin points out, within 
the Reconstruction and Development Programme, the new South African citizen 
is understood and constructed not simply as a bearer of human rights, but as an 
individual in search of liberty, happiness and democracy (Chipkin: 2007: p.155). 
The Bill of Responsibilities is an extension of this vision of the nation and its 
citizens.  
 
Chipkin points out that there are conflicting and contested understandings of what 
citizenship and national identity should comprise in the new South Africa. 
However, it is evident that in state language, the national democratic subject (as 
an ideal, at least) has taken centre stage. This has consequences for how 
citizenship is to be understood, and how non-citizens are to be treated and 
defined. Hansen and Stepputat write that: 
 
?Once in charge of the erstwhile colonial administrative 
apparatus, the new national elites devote enormous energy and 
pedagogical ingenuity to the task of converting colonial subjects 
into national citizens ? capable of responsible public conduct, 
loyal to the state and prepared to accept their responsibility as 
the backbone of society in return for privileges and recognition 
from the state.?  (Hansen and Stepputat: 2005: p.26) 
 
 31 
The Bill of Responsibilities shows this process in action and has helped in the 
creation of a nation and citizenship that is formulated in a particular way and is 
particularly homogenous. To reiterate, in the state?s current conception of 
citizenship and national identity, a South African citizen is one who contributes to 
the struggle for freedom and shows respect and reverence for others; s/he is 
engaged in actively creating the new South African nation. Here we see that the 
homogeneity strived for is not based on ethnicity or racial markers, but is, instead 
delineated according to qualities, characteristics, or subjectivities. In South Africa 
today, the homogenous, active, respectful, democratic citizenry is constructed as 
the ?right? and desirable population. A consequence of this is the plight of those 
who do not belong to the nation, who are seen to threaten the stability, cohesion, 
and homogeneity of the nascent nation. 
 
If national citizens are seen as the heirs and builders of the new nation, the 
protectors of freedom and democracy, then non-citizens are those who threaten 
this cohesion, democracy, and freedom. In popular discourse, criminals are seen 
as the embodiment of these threats. Illegal immigrants have emerged as 
scapegoats and are often blamed for violent criminality and property theft in 
South Africa (Klaaren and Ramji: 2001). The two terms ? illegal immigrants and 
crime ? have become synonymous, and thus illegal immigrants are constructed as 
the primary threats to the new South African nation, its peace and prosperity.      
 
Nyamnjoh argues that xenophobia is, in many ways, explained by people?s fears 
that illegal immigrants are crowding them out of labour and economic markets 
and are draining economic resources that should be theirs by right. Again, illegal 
immigrants are portrayed as ?threats? to post-Apartheid South African society and 
the rights and entitlements the newly inaugurated citizens deserve (Nymanjoh: 
2006). In this context, it becomes apparent that illegal immigrants are seen as 
threats to the order of post-Apartheid society and this necessitates the introduction 
of steps to restore social order and remove/counter this threat. As Schmitt points 
out, the norm is dependant on the exception. In this way, the norm of the national 
democratic South African citizen depends on the destructive, harmful, nationally-
 32 
threatening exception. In many cases, this exception is embodied by the 
popularly-imagined parasitic, poor, criminal, illegal immigrant.  
  
Thus, in dealing with concepts of citizenship and its exceptions, questions of 
national belonging and identity are at issue. At stake, then, is both the character of 
South African society and social order, and what steps are deemed necessary to 
maintain and protect this order. The ways in which this is done offer important 
insights into the nature of contemporary South African society and how 
citizenship is understood therein.  
 
The process of qualifying for citizenship introduces important social and political 
questions. Through looking at the criteria used to award citizenship, to decide who 
qualifies for inclusion and who is to remain an outsider or subject, one is able to 
analyse and gain insights into the nature of the political state and society under 
construction. It emerges that citizenship and the processes of qualifying for this 
status are embedded in the quest to preserve the homogeneity that democracy and 
state sovereignty relies upon.  
 
In South Africa, however, cultural diversity is not seen as a problem or threat, but 
is embraced, as discussed earlier. Thus, a different form of differentiation is 
required; this differentiation takes the form of the citizen/illegal immigrant binary. 
This is a position enforced through state law and governance; ?the position of 
immigrants is sometimes marked by a specific legal status: that of the foreigner or 
non-citizen? (Castles: 1993: p.12). It thus becomes apparent that the creation of 
the category of illegal immigrants is used in South Africa to divide the population 
and ensure that the homogenous nature of the multicultural society is preserved. 
Only the ?right? kinds of immigrants are accepted; the rest are forced into the 
category reserved for the unwanted: the illegal immigrant.  
 
 
 
 
 33 
Conclusion 
 
Illegal immigrants and non-citizens are constructed and portrayed as everything 
citizens and members of the nation are not. This is in keeping with the modern 
practice of constructing nations as idealised, ?imagined communities?. This is 
done through mythical formulations of the intrinsically good and noble 
characteristics of nations (Hobsbawm: 1992). Enemies are those who do not 
posses these characteristics and who threaten the social fabric ? such as the 
immigrants incapable of understanding the principles of American republicanism, 
or illegal immigrants in South Africa who are considered the root of all crime in 
this country. At the same time, it is reinforced through state practices and policies. 
In an era in which human rights are enshrined in national Constitutions which 
purport to protect and empower people, those who fall outside of the protection of 
Constitutions ? the non-citizens ? are left in a rightless, vague, and vulnerable 
position. This is in direct contrast to the privileges and protections granted to 
citizens.   
 
It thus becomes apparent that issues of immigration and citizenship are driven by 
several concerns and interests. At issue, then, is the sovereignty and on-going 
protection of the state and its ability to regulate, control, and shape society. The 
rise of nations and boundaries between members of different nations is 
inextricably linked with the rise of capitalism and this system?s particular 
concerns. These concerns translate themselves into issues of identity and 
assumptions about the nature of particular peoples. This is apparent in South 
Africa today, with the rise of xenophobia and the wide-spread association of 
illegal immigrants, particularly those from Zimbabwe, Mozambique, and Nigeria, 
with crime and drains on state resources (Williams: 2006). Through state practices 
which construct these people as criminals and illegal persons and modern, 
capitalist concerns with private property and protecting people?s claims to limited 
resources, barriers have been erected and illegal immigrants have become 
entrenched in state law and public consciousness as enemies.  
 
 34 
This process of identifying people as enemies thus hinges on self-interests and, to 
reiterate, the pursuit of the ideal society. Modernity has given rise to particular 
notions of self-interest and visions of the ideal society; these, in turn, have come 
to shape contemporary approaches to immigration and citizenship. In turn, these 
approaches shape people?s identities and the manners in which they relate to each 
other. They also mediate the state?s relationship with particular groups of people. 
Today, people are classified by the state as citizens or non-citizens, friends or 
enemies. Thus, the state is able, through a series of rewards and punishments 
associated with the granting of citizenship and basic rights, to dictate and 
determine people?s identities and behaviour. This is always in accordance with 
self-interests and desired goals, determined by the friend/enemy binary and in 
pursuit of the problem of the population.  
 
The study that follows is thus an examination of how the problem of the 
population is pursued in contemporary South Africa, and entails an investigation 
of the ways this population is constructed, delineated, policed, and enforced. 
Through examining those who are excluded from the population, who do not 
qualify for inclusion, it is hoped that an understanding of what it means to be 
included can be reached.  
 35 
 Chapter Two:  
The policy framework, the law and illegal immigration 
 
Much has been written about South Africa?s immigration policies in the post-
 Apartheid period. These policies form the cornerstones of South Africa?s 
approach to immigration and provide palpable insights into the manners in which 
immigration has been perceived and dealt with in the post-Apartheid period. As 
such, it is possible to read a series of discourses, interests, and objectives into the 
numerous Acts and government publications which have informed and shaped 
these policies and approaches. An examination of immigration policy in the post-
 Apartheid period thus yields considerable insights into the manners in which 
matters of inclusion, exclusion, identity formation, state power, and ultimately 
citizenship and nation-building are conceived and practiced on a legal and state-
 led level. The focus of this chapter will be a discourse-led analysis of South 
Africa?s current immigration policies and laws. This will be done in order to 
examine precisely how issues of inclusion, exclusion, nation-building and 
citizenship have been constructed and pursued through immigration policies and 
control in the contemporary period.  
 
Immigration is an issue that speaks to and deals with many central concerns of the 
modern nation-state. It is a concept and practice that is based primarily on the 
movement of people and populations across national or international boundaries, 
and subsequent to this movement, the incorporation (or exclusion) of these people 
into the population of the nation-state/the nation. It is thus an issue that challenges 
many of the key functions and characteristics of the modern nation-state and the 
powers that hold authority over these judicial areas and communities. Involved in 
issues of immigration are issues and concerns over sovereignty, rights and 
entitlements, security, population control and regulation, and inclusion/exclusion 
in the national community. In this way, immigration represents a heavily-loaded 
issue and is one that can be analysed from a variety of positions and that, in 
 36 
addition, offers several valuable positions and insights into broader sociological 
and theoretical analysis.  
 
Because immigration and the movements of people across international 
boundaries speak to so many of the concerns of the modern nation-state an 
analysis of immigration policies can aid greatly in an analysis and understanding 
of existence within a nation-state and a modern system comprised of nation-states. 
Thus, immigration policies, discussions around their creation and intent, and the 
implementation and consequences of these helps work towards an understanding 
of how existence has been effected and shaped in the era of modern nation-states, 
an existence and quality of existence that is today formulated and encapsulated for 
the most part in a single concept and mode of being ? citizenship. 
 
Thus, my analysis of and inquiry into South Africa?s current immigration policies 
and the concerns that have shaped these is based on an inquiry into a far larger 
problem and issue ? the content of citizenship in contemporary South Africa, and 
how this is understood and utilised as a mode of nation-building,  governmentality 
and biopower. Thus, what we are dealing with when we deal with immigration 
and issues around how immigration is policed, formulated, and understood are 
issues around existence, state-power, and the creation and maintenance of a 
national community. All of these are issues which are encapsulated in Foucault?s 
concepts of biopower and governmentality ? concepts that deal with how 
populations are produced, disciplined, and maintained in the modern era. Linked 
very closely to issues of population discipline and maintenance is Giorgio 
Agamben?s concept and paradigm of the state of exception.  
 
This is a concept and mode of governance ? governmentality ? that encapsulates 
many of the issues involved in immigration. It encapsulates issues around national 
sovereignty and the powers accorded to the sovereign, national security and the 
steps deemed appropriate to safeguard this security and deal with threats, 
population control and inclusion, and the foundations of this inclusion and 
consequences of exclusion. Thus, the work of Agamben and Foucault provide 
 37 
powerful paradigms which can be used to critique immigration issues and the 
subsequent problems of existence in the modern nation-state to which these give 
rise. Hence, the analysis of South Africa?s immigration policies and approaches to 
immigration and national inclusion/exclusion that will be undertaken will be 
framed by Agamben?s concept of the state of exception and the modes of 
governance this creates. A reading of contemporary immigration policies will be 
undertaken that will seek to establish whether the state of exception is relevant 
and provides a basis for analysing and understanding these policies, their concerns 
and effects.  
 
Producing the population: immigration policy and governmentality 
 
In the introduction to this chapter it was mentioned that immigration policies and 
practices play an important role in population control, regulation, and formation. 
As such, they are technologies of biopower and governmentality, two concepts 
that Foucault introduced to understand how populations are produced and 
maintained in modern nation-states. Biopower, he writes, refers to the ?set of 
mechanisms through which the basic biological features of the human species 
became the objects of a political strategy, of a general strategy of power? 
(Foucault: 2007: p.1). In modernity, for Foucault, populations become subjects of 
authorities? power, they become bodies of people that are open to power, 
influence, control, manipulation, and discipline, and as such become inscribed, 
through multiple mechanisms and means, with the power and ideological interests 
? i.e. discourses ? of sovereign powers.  
 
In order to achieve this manipulation and control over the population states have 
resorted to what Foucault terms ?governmentality?. Governmentality, in his 
conception, refers to ?the way in which the specific problem of life and population 
were raised within a technology of government? (Foucault: 2007: p.370). It is a 
technology of government that comprises institutions, procedures, tactics, and 
knowledge that all combine to disseminate discourses throughout society 
 38 
(Foucault: 2007: p.108). This is achieved through focusing these technologies and 
mechanisms on the social body ? i.e. the population ? as a whole.  
 
This gives rise to what Foucault describes as the disciplinary society ? the society 
in which bodies of people and populations are produced and maintained through 
power and discipline, in the service of a particular discourse. (Foucault: 1991) For 
Foucault, these mechanisms include the penal and penitentiary system, as well as 
schools, workplaces and factories, all of which serve to inscribe within the body 
and reproduce within the population a system or discourse of power that is based 
on discipline and surveillance (through both the self and others) (Foucault: 1991). 
In this way, populations are produced by and used within modernity to reproduce 
particular discourses and modes of existence.  
 
Immigration and specifically immigration policies can be added to the modes of 
governance and population production in modernity. These are policies that are 
concerned with creating and shaping populations, as well as controlling and 
regulating the movements of people across international boundaries. As such, they 
form part of biopower/biopolitics as immigration policies have been used in 
various eras and settings as methods of creating and shaping populations. The 
political aspects and techniques present in immigration control and policies are 
overtly clear in Apartheid-era policies. In these, immigration was utilised by the 
National Party government as a means of increasing the white population in South 
Africa.  
 
As Aurelia Wa Kabwe-Segatti notes, the NP, once it had become politically 
strengthened and had secured a foothold for Afrikaner nationalism and identity, 
began to pursue a pro-active policy of white immigration. ?Between 1961 and 
1991 several programmes were implemented and subsidies and direct State aid 
allowed for the settlement of tens of thousands of European immigrants? (Wa 
Kabwe-Segatti: 2008: p.62). This was done to aid in both the economic 
development of South Africa and to prevent the white population from ?sinking 
into an ocean of colour? (Wa Kabwe-Segatti: 2008: p.61). In this way, 
 39 
immigration policies during Apartheid served a form of population engineering 
and helped the government to mould and shape the population in line with their 
racialised policies. Immigration in this context helped produce and reproduce a 
particular type of population, and thus can be seen in the light of and as an 
example of governmentality. A further extension of biopolitics and population 
control in the Apartheid context makes itself felt within the policies pursued 
regarding the non-white populations. 
 
Wa Kabwe-Segatti makes reference to the ?two-gate policy? favoured by the 
Apartheid regime. This was a policy that hinged on having 
 
?one front gate welcoming populations corresponding to the 
criteria of attractiveness defined by the minority in power, the 
other, the back gate, with a double function, on the one hand 
preventing unwanted migrants from entering and on the other 
letting in, but only on a temporary basis cheap and docile 
labour? (Wa Kabwe-Segatti: 2008: p.60). 
 
In this way, immigration policies not only served to strengthen the white 
population and presence in South Africa, but were also used to control and instil 
discipline on the non-white, indigenous population, through ensuring that only 
those who fulfilled the economic needs of the state and industries would be given 
rights of temporary settlement and movement within South Africa. Examples of 
policies that served these intentions include the 1950 Population Registration Act, 
the 1962 Commonwealth Relations Act ?that ended uncontrolled trans-border 
movements in Southern Africa? (ibid), and the various influx control measures, 
including the Native Consolidation Act that granted Africans who could produce 
proof of their employment residential rights within South Africa?s urban areas 
under the notorious Section 10 ruling (Posel: 1991).  
 
In these cases, it becomes apparent that immigration and movement controls were 
used not only to influence population numbers, but also to instil discipline within 
 40 
the populations. The fact that Africans needed proof of employment to reside in 
urban areas is an obvious method of creating a pool of labour that is forced to 
abide by the state?s rules in order to secure an existence. In this way, labour 
discipline becomes linked to patterns of residence and access to rights, however 
limited they may be. A further example lies in the insistence that racial groups 
carry passes as a means of identification. This served to instil discipline within the 
population and affirm within them the difference of racial categories and bring 
these to the forefront of both identity and policing. It was a concrete method of 
entrenching disciplinary racial and labour power and discourse as well as 
population control within South Africa. It was thus a very clear example of 
migration and movement control as a means of governmentality and biopolitics.  
 
The biopolitical nature of these policies is clear from their racial nature and the 
manner in which they focused on the bodies of the population. In circumscribing 
people?s ability to move, reside and work these policies were acting on and 
through the body. They thus established the body as a means of discipline, 
regulation and discourse circulation. At the same time, this method was used 
within a broader context of governmentality/population production as the 
Apartheid state was able to entrench racial categorisations within the population 
through focusing on the body. Through this practice, racial subjectivities and 
categories became entrenched and at the forefront of the population. In addition, 
this racial categorisation and differential treatment produced a disciplined 
population, as compliance with the state?s biopolitical practices became the 
precondition for entry into the political community. Biopolitics is a technique or 
strategy of government that aims to control and manipulate ?the processes that 
sustain or retard the optimization of the life of a population? Dean: 1999: p.99). 
This was a definite feature of the Apartheid government?s approach to 
immigration, and remains one in the contemporary South Africa state?s 
immigration regime.       
 
In the post-Apartheid, democratic era, the proclivity for population control and the 
state?s pursuit and practice of biopolitics has not diminished; it has simply found 
 41 
different objects and subjects on which to exercise itself. One of the central targets 
of state power and control is the foreigner or migrant. A clear example of this is 
the demand made by the South African Immigration Act of 2002 that all 
immigrants in South Africa carry identification and be able to produce it at any 
given moment. Section 41 of the Immigration Act reads ?When so requested by 
an immigration officer or a police officer any person shall identify himself or 
herself as a citizen, resident or foreigner [italics in the original]?8. 
  
As the South African Migration Project (SAMP) note in their paper ?The New 
South African Immigration Bill: A Legal Analysis?, ?the requirement that 
everyone identify themselves means, in practice, a requirement to carry 
identification?. This order has, according to SAMP, ?police state implications? 
and infringes the Constitutional rights of South Africans? (SAMP: 2001: p.11), as 
they too can be asked for and made to produce identification on demand. This law 
has some important parallels with the Pass Laws of Apartheid, and can be seen to 
serve a similar (although not identical) purpose of population production and 
regulation. 
 
Just as the Apartheid Pass Laws regulated people?s movements and introduced 
discipline and control into the social body, as well as an awareness of people?s 
status, rights or the limitations thereof, and relationship with the state and its 
authority, the Immigration Act of 2002 too introduces measures of population 
control and regulation. This is evidenced and enhanced by the remainder of 
Section 41 of the Act which decrees that 
 
?if on reasonable grounds such immigration officer or a police 
officer is not satisfied that such person is entitled to be in the 
Republic, such immigration officer or police officer may take 
such person into custody without a warrant and if necessary 
detain him or her?9. 
 
                                                 
8
  RSA (2002). Immigration Act. Section 41. ?Identification?.  
9
  ibid.  
 42 
Here a further measure of population control and regulation is introduced. For not 
only are people now to be ever-aware of different statuses, such as resident, 
citizen or foreigner, they are to expect different treatment and rights.  
 
As in Apartheid, the body is the medium through which these statuses and 
differences are circulated and is thus a central mechanism of control and 
regulation. In demanding that immigrants carry identification and produce this 
when requested, the body becomes a symbol and mechanism of identification and 
differentiation. At the same time, the detention of suspected immigration 
offenders places the body at the centre of punitive, disciplinary mechanisms, and 
ensures that it becomes a product of biopower. In this way, biopolitical measures 
have not been jettisoned in the post-Apartheid period. They remain at the 
forefront of state policies and actions, and serve as a central feature of population 
production, differentiation, and policing. At the same time, human rights and the 
discourses associated with this are utilised as mechanisms of population 
production.  
 
Friends and enemies 
 
Here it is apparent that in South Africa there is an historical precedent of using 
immigration policies and control as a measure of population production and 
governmentality. This serves to inscribe and normalise what Carl Schmitt refers to 
as the friend/enemy distinction in South Africa?s immigration policies. A situation 
is created, normalised, and accepted in which the right type of migrants are 
accepted as friends and welcomed into South Africa, whilst at the same time 
illegal immigrants who do not fit the state?s specifications are classified as 
enemies who are to be kept out. This has led to a preoccupation in South Africa?s 
approach to immigration with security and control, as it becomes an accepted 
form of controlling and producing the population, and keeping enemies out. 
 
According to the SAMP, the ?objective that seems to override all [within South 
African immigration policies and approaches], is the need to deter and prevent 
 43 
people from illegally migrating to South Africa? (SAMP: 2001: p.3). Similarly, 
Oucho and Crush state that ?South Africa?s primary post apartheid migration goal 
has been to stop not facilitate immigration? (Oucho and Crush: 2001: p.150). This 
has manifested itself in an aggressive approach to monitoring, deporting, and 
controlling illegal immigrants. As the Act states, one of its primary intentions is 
that ?security considerations are fully satisfied and the State retains control on the 
immigration of foreigners to the Republic [italics in the original]?10.  
 
In this way, illegal immigrants are constructed and portrayed as threats and 
enemies to South Africa. This is done through emphasising the drain they place on 
South Africa?s resources and social services and through linking them fervently 
with crime and criminality. This has served to establish them firmly as enemies of 
the South African state and ?people?, and has added to the motivation for placing 
and constructing them within a state of exception, a state reserved for controlling 
and negating enemies and threats.  
 
Carl Schmitt characterised politics as a contest between friends and enemies, and 
held that the object of this contest is the ?negation? of one?s enemies? interests 
(Balakrishnan: 2000: p.106). According to state discourse, then, illegal 
immigrants? interests are based on settling in South Africa illegally and draining 
the country and its legitimate population of resources. In opposition, the state?s 
interests are protecting its sovereignty and borders and ability to deliver services, 
controlling immigration, and ensuring the economy is well-served and productive.  
 
Thus, the state?s objectives are, on the one hand, to increase security and 
surveillance so that illegal immigrants are prevented from entering or residing in 
the country and, on the other hand, to increase the punitive measures in place so 
that illegal immigrants who do enter are prevented from enjoying any sort of 
rights or existence in the country. This places them firmly as enemies, and ensures 
that a state of exception is present in order to deal with them. This is evident in the 
wide range of powers granted to police and immigration officers in order to police 
                                                 
10
  RSA. (2002). Immigration Act. ?Preamble?. 
 44 
immigration as well as through the deprivation of rights to social security which 
characterise the state?s interactions with this category of people.   
 
In addition to these powers, the fact that immigration offenders are treated as 
criminals by the state indicates the seriousness with which the state takes 
immigration and the policing thereof. Kaajal Ramjathan-Keogh, the National Co-
 ordinator for the Refugee?s and Migrants? Rights Programme at Lawyers for 
Human Rights, stated that ?To be an illegal person is not a serious crime; it's an 
immigration offence, it's not a criminal offence. It's merely an immigration 
offence?11. However, the South African state?s approach to dealing with this 
category of offenders allows them to be searched and arrested without warrants, 
detained for up to thirty days without sentence, and to be deprived of rights, such 
as rights to freedom of movement, security of the person, and the right to 
dignity12. Additionally, once an illegal immigrant has entered South Africa, 
?there's no mechanism for them to be able to legalise their stay?13, ensuring that 
they remain illegal and enemies within the state?s purview and systems. This, 
then, ensures an aggressive approach to immigration and preventing and policing 
illegal immigration. It is one based on security and the negation of the intentions 
and perceived interests of illegal immigrants.  
 
In addition, it is an approach that is informed by and based on governmentality. 
The act of negating the interests and movements of those considered to be illegal 
is a method of ensuring that they have no presence in or claim to be part of the 
population. It is thus linked very closely to population control and production, and 
follows a similar pattern to that used to create the legal, desired population and 
citizenry.  Just as the awarding of basic rights and social services to legitimate 
members of the population and the preference given to skilled and wealthy 
migrants serves to further the interests of the state and its mode of 
governmentality, practices based on excluding illegal immigrants also produce a 
type of population. 
                                                 
11
  Interview with Kaajal Ramjathan-Keogh, conducted on 31 March, 2008. 
12
  ibid. 
13
  ibid. 
 45 
 
For instance, the emphasis put on skilled migrants and those who have a minimum 
net worth serves to exclude ?Someone who is a domestic worker, or a gardener or 
a labourer? and ensures that these types of migrants are ?unable to legalise 
themselves.?14 Similarly, David Cote ? a legal councillor from Lawyers for Human 
Rights who works in the field of immigration law and assists ?migrants, refugees, 
asylum seekers who have been arrested and detained? in South Africa ? makes the 
example of ?Somebody coming from Zimbabwe, who can't have anything to eat, 
whose grandmother works in the yard, and is coming here, and also maybe they're 
afraid of the political situation in general but they haven't actually met that criteria 
of a specific persecution,? as a type of migrant who is criminalised and vilified by 
the Immigration Act and the South African state?s immigration policies15. In this 
way, the South African state?s approach to immigration serves to exclude the poor 
and unskilled, and ensures that this class of people cannot be included in the 
population.  
 
On the other hand, the 1999 White Paper on International Migration ? the White 
Paper that came to form the basis of South Africa?s current Immigration Act ? 
notes that immigration policy needs to be used ?to let people who add value to our 
society in and to keep those that do not, out.?16 The authors of the White Paper 
?believe that this can and must be done,?17 and describe people who are to be 
regarded as valuable and desirable as follows:  
 
?The people who can add value to our growth and development 
are those who invest, are entrepreneurs and promote trade, those 
who bring new knowledge and experience to our society, and 
those who have the skills and expertise required to do the things 
we cannot properly do at this stage.?18 
                                                 
14
  ibid. 
15
  Interview with David Cote, conducted on 12 May, 2008. 
16
  Republic of South Africa. Task Team on International Migration. (1999). White Paper on 
International Migration. Section 3. ?Preliminary considerations?.   
17
  ibid. 
18
  ibid. 
 46 
 
There is thus a recommendation that immigration control be utilised as a means of 
population production and that differentiation between types of migrants needs to 
be pursued. This is done through categorisation and classification, which is, in 
turn, enforced through the law and differential treatment used to keep unwanted or 
undesirable migrants out. There is thus a clear intention of regulating the ways in 
which immigration both sustains and retards (as Dean put it) the life of the South 
African population.  
 
This method is enforced and entrenched through the lack of mechanisms and 
spaces in the law that allow illegal immigrants, once in South Africa, to legalise 
their presences in the country. Here, immigration laws become a type of ?iron 
cage?, and shows the state?s power and bureaucracy to be inflexible and 
inescapable. This iron cage-approach is extended to children born of migrants in 
South Africa and the ruling within the Citizenship Act which ensures that if a ? 
[foreign]child is born in this country they do not get citizenship, they take on the 
citizenship of their parents.?19 This means that a child born to a refugee or illegal 
immigrant in South Africa too will be classified as a refugee or illegal immigrant. 
 
This was made clear by the experience of one particular refugee interviewed, who 
related how, when his child was born in South Africa, the word ?alien? was 
immediately inscribed on his birth certificate20, immediately placing the child 
outside of the population and in a state of exception. In this case, the biopolitical 
nature of immigration control and policing is clearly evident, and is shown to be a 
method of producing and identifying members of the population practiced from 
birth. This cage-like inflexibility in dealing with illegal immigrants and refugees 
is in contrast to the White Paper?s recommendation that, in the case of ?valuable? 
immigrants, ?openness to the world should be welcomed.?21 Thus there is an 
                                                 
19
  Interview with Kaajal Ramjathan-Keogh, conducted on 31 March, 2008. 
20
  Interview with Pastor [real name withheld], conducted on 15 July, 2008. 
21
  RSA. Task Team on International Migration. (1999). White Paper. Section 3. ?Preliminary 
considerations?.    
 47 
overwhelming use of differentiation and categorisation within current immigration 
policies, which are based on security, self-interest, and population production.  
 
The preoccupation in immigration policies with security and controlling the 
population in order to further the national interest and protect national sovereignty 
opens up a very particular and significant form of political and social space and 
practice. It is one that can be described and understood through the state of 
exception. For Agamben, the state of exception is a mode of governmentality and 
paradigm of government that is bound up inextricably with issues of national 
security and sovereignty. Citing Carl Schmitt, Agamben formulates and theorises 
sovereign power as resting on the state of exception and the ability to enforce it. 
For Schmitt the sovereign is ?he who decides on the state of exception? (cited in 
Agamben: 2005: p.1), meaning that the definition and extent of sovereign power 
is measured by and contained in the ability to decide on the social and political 
limit and to create the norm.  
 
In this conception, sovereign power is grounded in the ability to decide on what 
constitutes normal society and social-political circumstances and to decide what 
represents an exception to this. As noted previously, the state of exception bears 
striking similarities and has its origins in the state of emergency as a mode of 
governance. The state of emergency is a temporary form of political and social 
rule that is invoked in order to deal with exceptional social-political 
circumstances, and is viewed as a measure needed to restore order in these 
periods. The declaration of a state of emergency thus rests on a presumption and 
conception of what represents normal and desirable circumstances and a view of 
when these are exceeded or disrupted. Thus, in deciding on what represents an 
?exception?, the sovereign power is given the ability and authority to not only 
decide on what represents an exceptional case, but also to decide on what 
represents the norm. It is thus a mode of governance and understanding of power 
that rests on the production and protection of a particular form and functioning of 
society, and is thus a very powerful and extensive form of governmentality.  
 
 48 
Agamben grounds his theory of the state of exception in this Schmittian 
understanding of sovereign power, and sees the state of exception as a paradigm 
of governance that gives maximum expression to sovereign authority and 
entrenches the ability of the sovereign to decide on the normal and desirable 
social and political situation. It is thus a form of governmentality that is heavily 
invested in issues of security and producing and protecting a form of society. It 
has its roots in the state of emergency and earlier forms of this, such as the 
iustitium, or period of public mourning, in which the normal functioning of the 
law and society was suspended in order to allow for the passing and 
commemoration of the sovereign after his death (Agamben: 2005). It is thus a 
form of governance and controlling society and applying the law that rests on the 
suspension or non-application of the law.  
 
What distinguishes the state of exception from a state of emergency, however, is 
that whilst a state of emergency is formally declared, a state of exception is not; 
rather, it is a suspension of the law that ensures the continual application and 
functioning of the law through creating instances in which the law does not apply 
or can be overlooked. It is thus a legal outside or exception, rather than formal 
suspension, and is seen not as a temporary, extreme form of governance but rather 
as what Agamben describes as a ?paradigm of government? ? a particular view,  
practice, and mode of governance or governmentality (Agamben: 2005).   
 
As a practice of governance that depends on and entrenches situations in which an 
outside is created and circumstances are decided on in which the law does not 
apply or can be overlooked, the state of exception is, like a state of emergency, 
dependant on a decision on what constitutes an exception, and resting on this, 
what constitutes the norm. It is thus a practice of governance the focuses on 
preserving and entrenching a norm and normal state of society, and is thus bound 
up in issues and practices of security. This is clear in the case of illegal 
immigrants in South Africa. They fall into a category and case in which the 
normal course of law does not apply: 
 
 49 
?The type of rights foreigners can aspire to in South Africa 
is?restricted by Section 36 of the Constitution which is the 
limitation clause. It enables the State to distinguish between 
different categories of rights and only grant some to different 
categories of people without breaching the Constitution,? (Wa 
Kabwe-Segatti: 2008: p.85) 
 
thus creating a situation in which foreigners and illegal immigrants especially can 
be seen to be outside the law and treated differently, or exceptionally. 
 
The exceptionality of migrants in South Africa and the non-applicability of the 
law in their case is evidenced in the 1999 White Paper where it is stated that  
 
?In South Africa we will need to determine the extent to which 
the circumstances of being an alien, either a legal or illegal one, 
may authorise government to provide them with a lesser degree 
of constitutional protection. However, even if there is 
uncertainty on the extent, there is agreement that alienage is one 
of the circumstances which triggers the application of the 
limitation clause as a matter of fact which enables government 
to legitimately deal with aliens on a different footing than it 
would with its own citizens.?22 
 
Here we have a concrete assertion that ?aliens? or immigrants are of a different 
order to citizens, and thus need to be dealt with in different ways. There is clear 
acknowledgement that, in the case of illegal immigrants, the normal course of law 
and constitutional order do not apply. This has paved the way for their exclusion 
from ?normal?, legal society and has entrenched them as vulnerable, excluded 
enemies or aliens in South Africa.    
 
                                                 
22
  RSA. Task Team on International Migration. (1999). White Paper. Section 6. ?The need and 
parameters for a new policy?.    
 50 
The preoccupation with security in South Africa?s immigration laws and 
approaches thus gives rise to a series of abuses and practices that can be seen to be 
outside and in contradiction of the law: The declaration that, in the case of 
foreigners in South Africa, particularly, illegal immigrants, the law can be legally 
suspended has given rise to a series of practices and abuses that entrench 
immigrants within a state of exception and place them outside of the normal 
acceptable community.  This indeed points to a state of exception as it provides an 
instance in which a category of people are created that serve as a limit point for 
the law and its applicability and provide an outside in terms of which the norm 
can be understood. This is evident in the categorisation of foreigners and the 
different treatments meted out to different types of migrants.  
 
The prioritising and inclusion of particular types of migrants and the exclusion of 
undocumented ?aliens? serves to create a boundary between what can be seen as 
acceptable and normative, on the one hand, and threatening, dangerous, and 
exceptional, on the other. In this way, a norm or standard is created ? the law-
 abiding, productive migrant and member of South African society ? and is 
preserved through the exclusion of the exceptions to this ? the illegal, 
undocumented, parasitic migrant. South African immigration policies and 
approaches, then, can be seen to be framed and influenced by a state of exception 
that is utilised to create a population and norm.    
 
Human rights and population production 
 
One of the fundamental human rights is the right of habeas corpus, the right to be 
present at one?s trial and to be given a fair trial.  In his classical and highly 
influential writings on citizenship, T.H. Marshall stresses that the notion of 
citizenship begins with ?civil rights, for example, rights to property and to a fair 
trial in which proper individual citizens could claim habeas corpus?which 
curtailed the arbitrary exercise of state violence? (Hansen and Stepputat: 2005: 
p.10). In the modern period, then, rights and citizenship are secured by protecting 
the individual and his/her property from the arbitrary exercise and excesses of 
state power. The ruling within the Immigration Act that suspected undocumented 
 51 
immigrants and foreigners who are in South Africa without the correct 
identification documentation can be arrested without a warrant and can be 
deprived of their property can be seen as a method of denying suspected 
foreigners and immigration law offenders the rights to a fair trail and due process 
before the law. 
    
For example, Joyce Tlou of the South African Human Rights Commission 
(SAHRC) recounts that the SAHRC has encountered and received complaints 
from ?specific individuals who complain that they are detained in Lindela but they 
are legally entitled to be in the country? and have not been given the opportunity 
to prove that they are legally allowed to reside in South Africa23. Here we have a 
very real denial of the right to habeas corpus, fair trials, and basic human rights in 
cases in which people are suspected of being illegal immigrants. In some cases 
this denial of rights is even extended to South African citizens, such as the young 
man who was arrested for being ?too dark? and subsequently deported to 
Mozambique, despite being a fully legal South African citizen24. 
 
In cases such as these, the exceptional status of immigration offenders and the 
state?s denial of their rights, even the most basic of these, are evident. This denial 
of rights and access to fair trials is made even more concrete through David Cote?s 
assertion that ?rights are accessible if you have access to legal representation. If 
you're in Lindela, for example, and unless you get to speak to a lawyer, you are 
unable to access those [rights]?25. This adds further vulnerability to the position of 
immigration law offenders, who are placed in a situation in which their ability to 
access rights and fair treatment on behalf of the state rests on their ability to attain 
legal representation. 
 
In this case, the most basic of human rights is only accessible through expert 
mediation, creating a situation in which rights are not always applied or 
                                                 
23
  Interview with Joyce Tlou, conducted on 11 July, 2008. 
24
  Venter, Z. ?Damages for boy considered to be ?too dark??. article appearing in The Star, Tuesday 
11 March, 2008. 
25
  Interview with David Cote, conducted on 12 May, 2008. 
 52 
recognised. The Immigration Act also insists that ?no person shall aid, abet, assist, 
enable or in any manner help? an illegal foreigner?26. This serves to ?turn every 
illegal resident into a legal leper? as this section of the Act isolates people who are 
in South Africa illegally and is designed to ?ensure that no person or body 
corporate in the Republic will lend any assistance to an illegal resident whatever 
their reason for being in the country? (SAMP: 2001: p.11). In this way the 
Immigration Act pushes people into a space in which rights are minimal and their 
(ideal) isolation from the rest of the population is clear. Through denying them 
rights to legal representation, access to legal processes, and seeking to ensure that 
they are isolated from the ?legal? population, the state is producing illegal 
immigrants as an excluded, exceptional category of people.  
  
They are marked out as different from the rest of the population as they are 
isolated and the legal population is encouraged to enforce this isolation. At the 
same time, they are denied basic human rights, rights which have been 
constructed as part of the foundation of citizenship. Thus, the immigration policy 
pursued by the South African government can be seen to push illegal immigrants 
into an exceptional space ? a state of exception ? and ensure their separation from 
the population and their clear designation as a category of people who are outside 
of the law.  
 
For Agamben, the state of exception is a legal space in which the law is deemed to 
legally not apply. In the case of the Immigration Act making it legal for suspected 
illegal immigrants to be forced to carry identification documents, stopped, 
searched, and even harassed without warrants, and be deprived of legal counsel 
and access to the law, we see a clear example of a state of exception being in 
force. This is the case as there is no legal requirement for people to carry 
identification documents in South Africa, and measures such as the ones 
contained in the Immigration Act have denied people suspected of being illegal 
immigrants the rights to presumption of innocence, free movement, and security 
of the person (SAMP: 2001). This has created illegal immigrants as a vulnerable, 
                                                 
26
  RSA. (2002). Immigration Act. Section 41. ?Identification?. 
 53 
excluded category of people as in their case the law can be said to legally not 
apply.      
 
This vulnerability and tenuous link between immigration law offenders and 
human rights is a telling example of the state of exception in service of 
biopower/biopolitics, and serves as a very real method of introducing control, 
regulation, and bases for inclusion and exclusion within the social body. As 
Agamben points out, one of the foundational laws and rights that proceeded 
habeas corpus was Article 129 of the Magna Carta, which declared that 
 
?No free man?may be arrested, imprisoned, dispossessed of his 
goods, or placed outside the law?or molested in any way; we 
will not place our hands on him nor will have others place their 
hands on him?except after a legal judgement by his peers 
according to the law of the realm? (cited in Agamben: 1998: 
p.123). 
 
According to Agamben, this was an early and preceding form of the law of 
habeas corpus, and laid the ground for the command ?you will have a body to 
show? and will ?account for the cause of the arrest and detention? (ibid).  
 
For Agamben, it is the introduction of the term and insistence on the presence of 
the body that is significant in an analysis of the modern formulation and 
preoccupation with biopolitics. It is the presence of the body within the 
formulation of the law that, according to Agamben, allows one to perceive the 
activity of biopolitics as being at the heart of modern democracy and law. For 
him, it is laws and formulations such as this that serve to imbue the body or bare 
life with political significance, and thus make it the site and subject of biopolitics 
and governmentality.  
 
At the same time, however, the former article Agamben points to ? Article 129 ? 
also contains a significant foundation for modern governmentality. What is of 
 54 
significance in the formulation of Article 129 is the distinction ?free man?. It is in 
this simple category that a fundamentally modern mode of politics ? the politics 
of inclusion and exclusion, differentiation and categorisation ? raises its head and 
makes its presence felt. In singling out ?free men? as the subjects to whom Article 
129 applies an immediate exception is introduced between the rights and 
treatments the free and the non-free can expect. In this case, one can find a 
definite basis for inclusion and exclusion and an immediate insertion of division 
between free and non-free, between members of the realm or community and 
outsiders.  
 
It is the distinction between free and non-free that also points to and paves the 
way for modern practices of biopolitics and governmentality, as it, in this case and 
numerous subsequent cases, introduces a distinction between people in the eyes 
and practices of the law on the basis of people?s statuses. In modernity, the 
awarding of status in relation to the nation-state paves the way for peoples? 
opportunities to be judged as included or excluded, as free or not free. A clear 
example of this is present in Mamdani?s citizen/subject distinction, in which 
different laws apply to different sectors of the population (Mamdani: 1996).  
 
In a similar case, the rights to settlement afforded to employed Africans in 
Apartheid urban areas were distinct from the rights afforded, or more accurately 
denied, other Africans who could not meet the Apartheid state?s conditions or 
requirements. In all of these cases, in the free man versus the non-free, in the 
citizen/subject divide, and in the employed African with Section 10 rights versus 
the unemployed African whose presence in the urban areas was prohibited, we see 
that rights and inclusion are tied inseparably to characteristics or qualities, be it 
employment status, race, or wealth.  
 
What emerges, then, is that one?s claim to rights and inclusion is based on certain 
characteristics or features. Or, put conversely, certain qualities or characteristics 
of population make one qualified for inclusion and the treatment granted and 
protected by rights. Those who cannot meet these conditions are forced into an 
 55 
exceptional space, a place in which the rights afforded to others are absent and do 
not apply. In this sense, then, rights and treatment by the law is a method of 
producing people and populations, as societies learn that their abilities to meet the 
requisite criteria for inclusion determine their rights and the treatment they can 
expect. Thus, rights and the regulation and enforcement of these are key tools of 
biopolitics and the creation and discipline of the population; they are methods 
used to ensure that the ?right kind? of population is produced.  
 
Social services, citizenship and exclusion 
 
Immigration laws and policies are another clear form of biopolitics and the 
creation of populations. It becomes apparent that within South African 
immigration law there is a desire or overriding preoccupation with using 
immigration, as was the case in Apartheid, as a means of producing the population 
and ensuring that only the right kind of people are admitted and given rights in 
South Africa. The fact that illegal immigrants and others who are suspected of 
violating the conditions of their stay in the country can be arrested and detained 
without warrants is just one indication that immigration laws are attempting to 
discipline and produce populations within South Africa. 
 
In addition to making it the responsibility of police and immigration officers to 
ascertain the identities and statuses of people present in South Africa, the 
Immigration Act also makes it the responsibility of employers, learning 
institutions, and businesses providing accommodation to identify and verify the 
statuses of customers, employees, or clients in order to ensure that ?a foreigner 
whose status does not authorise him or her to receive?training?or instruction?27 
or services does not do so, and thus does not cross the division between an 
included member of the population and one on the outside.  
 
What this section of the Act serves to do is to not only affirm the isolation and 
exclusion of illegal immigrants or foreigners in South Africa, and confer onto 
                                                 
27
  RSA. (2002). Immigration Act. Section 39. ?Learning Institutions?. 
 56 
them exceptional status, it also serves to place issues of identification, and thus 
difference and inclusion/exclusion, at the forefront of public consciousness. This 
is a form of discipline that is thus instilled not only on the illegal population, but 
on the legal population too, as it ensures that the differences between legal and 
illegal are always clear and at the forefront of transactions and interactions. In this 
way, both a legal and illegal population is produced and maintained, and the state 
of exception and differential treatment is placed at the centre of this biopolitical 
strategy. 
 
This strategy of introducing differential treatment and rights to different 
categories of peoples and placing identification and the need to verify status at the 
forefront of interactions is made abundantly clear in Section 44 of the Act ? which 
deals with ?organs of the state? and their interactions with immigrants and 
foreigners ? which declares that ?any organ of State shall endeavour to ascertain 
the status or citizenship of the persons receiving its services and shall report to the 
Department any illegal foreigner, or any person whose status or citizenship could 
not be ascertained [italics in the original]?28. 
 
The effect of this section of the Act is to again enhance the panoptic and 
surveillance powers of the state and society, and make the detection of illegal 
immigrants a primary concern, even in issues of social services. Here disciplinary 
and exclusive practices of identification are placed firmly within the state?s focus 
and its dealing with the population. Once again this ensures that issues of 
inclusion and exclusion are brought to the fore and are inscribed within state 
policies and practices, and the ways in which these are translated into actions and 
interactions in the public sphere. The insider/outsider or citizen/illegal distinction 
is placed in a position of prominence.  
 
A further effect and intention of this section of the Act is to ensure that social 
services remain the preserve of the legal population i.e. the citizenry. In 1997, the 
then Minister of Home Affairs, Mangosuthu Buthelezi, in a precursor to Section 
                                                 
28
  RSA. (2002). Immigration Act. Section 44. ?Organs of State?. 
 57 
44 of the Act, ?called on all government departments to ?request identity 
documents or passports of all foreigners requesting services subsidized by the 
government? to ?ensure that they do not gain access to services in short supply to 
our own people? ? (Peberdy: 2001: p.19). Here, the distinction between citizens 
and illegal outsiders or foreigners is made abundantly clear in both state language 
and practice.  
 
This serves a dual purpose of entrenching divisions and categories within the 
population, and also serves to strengthen state power. According to Sharma and 
Gupta, state power is circulated and reproduced through ?the repetitive re-
 enactment of everyday practices?, particularly at a bureaucratic level (Sharma and 
Gupta: 2006: p.13). Through these practices and re-enactments, state insistences 
and edicts become common-place and entrenched within populations, as people 
learn that in order to access and interact with the state, they need to abide by these 
rules and processes. This is the case in the demand that all those who receive 
social services produce the correct identity documents. 
 
At the same time, state bureaucratic power and processes are used, as Sharma and 
Gupta point out, to entrench class, gender, caste, and other categories of 
difference within the population (ibid). They use the example of the Indian 
bureaucracy?s insistence that all interactions with the state be conducted through 
writing and filling out forms as a way in which differences in education, caste, 
class and gender are reproduced by the state. As they note, ?Upper-class and 
higher-caste men are often better situated to take advantage of state programs than 
poorer and lower-caste women.? (ibid).  
 
One can note a similar trend at work in South Africa today. Those with the correct 
status and identification documents to prove this are able to take advantage of 
social services in ways that those without these cannot. This reproduces divisions 
between obedient, classified citizens and illegal outsiders on a day to day basis, 
and thus reproduces state power and barriers between inclusion and exclusion.       
 
 58 
This approach of cementing lines between citizens and outsiders through 
differential treatment and the denial of social services was criticised by Kaajal 
Ramjathan-Keogh who, when asked whether the state wants to encourage people 
to apply for citizenship responded by saying that  
 
?[The government] doesn?t want everybody to be able to get 
citizenship or permanent residence [and]  will try to keep a very 
close hold on who is permitted to do so and who is not, 
primarily for the reasoning that they would then be able to 
access state resources: pensions, grants, all of the above.?29 
 
Similarly, David Cote points out that within the government ?there's the idea that 
you must exclude foreigners, and it must be citizens first,? in order for the social 
grant and public health system to be maintained30.   
 
So, it is apparent, then, that keeping people outside of the law and legal populace 
and within a status declared by the state to be illegal is a measure of ensuring that 
people are not able to lay claims to the services provided by the state. Illegal 
foreigners are thus kept in a status that prevents them enjoying the social benefits 
provided by the state, and deprives them of important human rights, such as 
economic security, schooling, and even medical care. As Joyce Tlou stated, ?if it?s 
not life threatening, if it?s not an emergency, [illegal immigrants] are not going to 
get medical assistance.? This places them in a situation in which ?the right to 
life?, as she put it, is the only right that illegal immigrants in South Africa can lay 
claim to31.  
 
Thus, a very clear and stark picture emerges, one in which statuses such as 
?citizen? and ?illegal immigrant? convey and translate into very real and different 
experiences of existence within South Africa.  What we see is a situation in which 
citizenship is produced and reproduced as the gateway to entitlement and 
                                                 
29
  Interview with Kaajal Ramjathan-Keogh, conducted on 31 March, 2008. 
30
  Interview with David Cote, conducted on 12 May, 2008. 
31
  Interview with Joyce Tlou, conducted on 11 July, 2008. 
 59 
enjoyment of rights. It is the foundation on which human rights and the politics of 
inclusion in society are built, and it relies on an outside, on an excluded section of 
the population for its substance or significance. As is seen in the quote from 
Buthelezi cited by Peberdy, citizenship and social services are a means of placing 
?our own people? on a plane above others. In order to do this, an excluded ?other?, 
a referent against which ?our own people? or citizenship can be measured, is 
required. In many ways, illegal immigrants and the policies used to exclude them 
from access to social services provide this.  
 
Thus, citizenship and the classification of people as ?illegal immigrants? are both 
established as mechanisms of biopolitics. Biopolitics is concerned with ?matters 
of life and death, with birth and propagation, with health and illness?, and, 
ultimately, the conditions under which populations live and die (Dean: 1999: 
p.99). All of these spheres are regulated by the classification of people into 
?citizens? or ?immigrants?, and these categories are thus central mechanisms of 
biopolitics in South Africa today.    
 
The norm depends on the exception 
 
For Carl Schmitt, the norm depends on the exception. This means that in order for 
a norm to be understood and have meaning, an exception to this norm needs to be 
present so that the norm can have substance and significance behind it. As he saw 
it ?all laws have an outside? and it is only through viewing this outside that the 
?inside? of the law can make sense (Hirst: 1999: p.12).  In Schmitt?s view, this 
translates into a practice of politics that is based on producing an inside and an 
outside, both a political community and a community that exists as outsiders or in 
opposition to the community. This line of thinking allowed Schmitt to pursue the 
argument that democracy is a political process and practice that relies on ?first 
homogeneity and second?elimination or eradication of heterogeneity? (Mouffe: 
1999: p.39).  
 
 60 
Schmitt asserts his argument about the need for homogeneity in democracies 
when he argues that ?[e]very actual democracy rests on the principle that not only 
are equals equal but unequals will not be treated equally? (ibid). In this way, 
within democracies, and in order to preserve democratic societies and ensure their 
functioning, a community has to be created and then delimited. Thus, even though 
democracies putatively strive for inclusive social and political conditions, a limit 
to the inclusion and formulation of the political and national community has to be 
reached. In this way, the norm of inclusion and membership of the community ? 
which today takes the form of citizenship ? has to have an exceptional outside in 
order to have meaning and be maintained. This practice is evident in the manner 
in which social services are allocated and awarded in contemporary South Africa.  
 
As the examples used above show, one of the central meanings of citizenship in 
South Africa today is access to social services. As Buthelezi points out, efforts 
must be made to ensure that services are reserved for ?our own people?. In this 
statement it becomes apparent that not all who are in South Africa are part of ?the 
people? or community, and need to be treated as such. This approach is made 
concrete in the 1999 White Paper on International Migration, where it is stated 
that 
 
?The objectives of GEAR [Growth, Employment and 
Redistribution] could be best achieved by the maximum possible 
limitation on the entry of any migrant other than tourists and 
business persons, so as to reduce the number of people to whom 
government needs to supply services and for whom the economy 
needs to provide.?32 
 
In addition, the Paper notes that ?illegal aliens have?negative impact[s] on the 
provision of services and on our society? as they ?compete for scarce resources 
with millions of South Africans? and ?compete for scarce public services, such as 
schools and medical care, infrastructures and land, housing and informal trading 
                                                 
32
  RSA. Task Team on International Migration. (1999). White Paper. Section 5. ?The existing 
policy framework?. 
 61 
opportunities?33. The Paper goes on to suggest that methods need to be found to 
ensure that ?illegal aliens? are made unwelcome in South Africa, so that they are 
discouraged from remaining in the country and placing a drain on services they 
have no claim to. The Paper states that ?the best way to prevent further illegal 
immigration is to create in South Africa an environment which does not offer 
them the opportunities of employment and free available public services which 
they cannot find in their countries of origin?34, thus showing an unambiguous 
intention of making it clear that illegal immigrants are not welcome in South 
African and need to be excluded from the public sphere.  
 
Here, then, it becomes clear that illegal aliens are not to be permitted or tolerated 
in South Africa as they compete with and deprive deserving citizens and residents 
of services to which they are entitled. In this way, it becomes apparent that social 
services and rights such as medical care, public infrastructures, land, housing, and 
schooling have been constructed and are maintained as the preserve of South 
African citizens and those who have been granted the right to permanent 
residence. In this way, the South African democracy and political community is 
constructed and given meaning through producing categories of people who 
belong and are entitled; simultaneously, these categories are enforced through the 
production of categories of people who are outside of the community, who form 
the exception. 

 

 Setting limits on the population 


 This method of giving form and substance to the South African population 
through establishing illegal immigrants as an exceptional category is made evident 
and abundantly clear by a 2004 Constitutional Court ruling which declared that it 
was unconstitutional to reserve access to social grants such as child-support 
grants, care-dependency grants and old-age pensions for South African citizens 
only. The Court ruled that permanent residents should also be entitled to these 
                                                 
33
  RSA. Task Team on International Migration. (1999). White Paper.  Section 6. ?The needs and 
parameters for a new policy?. 
34
  RSA. Task Team on International Migration. (1999). White Paper . Section 11. ?Enforcement?. 
 62 
grants as ?the Constitution vests the right to social security in ?everyone? 
and?permanent residents are bearers of this right?35.  
 
However, whilst this ruling can be seen as progressive and a means of furthering 
inclusion and social security in South Africa, there are two important elements 
and exceptions made within it. The first is the judgement that declares that the 
South Africa state is ?entitled to prioritise its citizens? when awarding and 
distributing social grants. Here, it is clear that citizenship remains a privileged 
status and places one who bears this status above other categories of population. 
Here, again, citizenship is given substance through the construction of a boundary 
and limit.  
 
The second aspect of the ruling that enforces an exceptional status and legitimises 
a mode of biopolitics and governmentality is the ruling that singles out permanent 
residents as the category of foreigners who are entitled to social grants. The 
Immigration Act declares that permanent residence status will be granted to 
foreigners who have been employed in South Africa with valid work permits for 
five years and who have received permanent offers of employment, as well as to 
foreigners of ?good and sound character? who have permanent employment in 
South Africa, who intend to establish viable and profitable businesses in South 
Africa, and who have a ?minimum prescribed net worth [italics in the original]?36. 
Here it becomes clear that permanent residents are those members of the South 
African community who meet specific criteria specified by the state. They are 
foreigners who are well-disciplined and who comply with the legal obligations set 
upon them by the state, such as having legal work-permits and being present in 
the country for five years continuously, and who meet specified economic criteria.  
 
This is a direct form of governmentality and population production as it serves the 
purpose of only admitting a certain type of person into the population. It thus 
forms part of a strategy of creating a community or population. The focus of the 
                                                 
35
  Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v 
Minister of Social Development (CCT 13/03; CCT 12/03) Decided on 4 March 2004. 
36
  RSA. (2002). Immigration Act. Sections 25, 26 27. ?Permanent Residence?.   
 63 
granting of permanent residence rights is to create an economically viable and 
productive community and to ensure that foreigners admitted into the South 
African community are disciplined and obedient to the state. Hence this status is 
open only to those who comply with the state?s demands of identification and who 
submit to the surveillance of the state bureaucracy, and who are considered 
economically beneficial and productive. Thus, inclusion in the South African 
political and social community, and the awarding of rights that goes with this, is 
the preserve of only a select type of person. 
 
Foucault declares that, in modernity, when population production, management, 
and control become the object of sovereign power and discipline, a situation is 
created and becomes prevalent in which ?[t]he population is pertinent as the 
objective, and individuals?are no longer pertinent as the objective, but simply as 
the instrument, relay, or condition pertinent for obtaining something at the level of 
the population? (Foucault: 2007: p.42). Thus, Foucault describes a situation in 
which individuals are the objects of state control and discipline not as individuals, 
but as members and conduits of the population. Thus, in seeking to instil 
discipline on an individual, the sovereign is, in fact, seeking to instil discipline 
within the population as a whole. In this way, methods of biopolitics and 
governmentality aimed at individuals have a bigger objective in mind: the 
population. This is apparent in the South African state?s treatment and delineation 
of permanent residents. In awarding this status and rights only to individuals who 
meet specific criteria, the state is aiming to produce and reproduce not just a type 
of individual, but a type of population.  
 
This objective becomes clearly evident when one examines the case and treatment 
of a different category of foreigners, illegal immigrants. In the Constitutional 
Court case cited above, in addition to declaring that permanent residents are 
imbued with the right to social security and are part of the ?everyone? to whom 
rights in South Africa apply, the Court ruled that ?it may be reasonable to exclude 
from the legislative scheme [and the definition of to whom social security rights 
 64 
apply]?illegal residents, who have only a tenuous link to this country?37. This 
ruling thus makes it constitutionally permissible to exclude illegal residents from 
social security rights, and declares that their presence and existence in South 
Africa should be regarded as tenuous, temporary, and precarious. This is an open 
contradiction of the opening line of the South African Constitution, which 
declares that ?South Africa belongs to all who live in it?38, for in this ruling, it is 
declared that even though illegal immigrants live/reside in South Africa, they are 
not to be considered part of the community or population, and are not entitled to 
the benefits, services, and rights that membership of the community confers. They 
are thus posited as on the outside of the community, and are thus to be treated 
differently.  
 
The result of this differential and exclusionary treatment of illegal 
residents/immigrants in South Africa is two-fold. On the one hand, it places this 
category of people in a concrete state of exclusion and exception. The denial of 
basic rights and services to illegal foreigners, such as housing and medical care 
ensures that their existence is, tenuous and precarious, and their only right, as 
Tlou put it, is ?the right to life?. This ensures that illegal immigrants? existence is 
one of bare life ? a state that Agumben characterises as marginal and exceptional. 
Bare life is existence that is removed of comfort and protection and has little more 
than life itself at its heart. It is life that is ?exposed to death? and is characterised 
by this vulnerability (Agamben: 1998: p.88). This is a contrast with life for full 
members of the population, who enjoy rights such as rights of habeas corpus, 
social security, freedom and security of the person, and political rights. As 
Agamben puts it, ?Not simple natural life, but life exposed to death (bare life or 
sacred life) is the originary [sic] political element [italics in the original]? 
(Agamben: 1998: p.88). From this, the second effect of the exemption and 
exclusion of illegal immigrants is introduced.  
 
                                                 
37
  Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v 
Minister of Social Development (CCT 13/03; CCT 12/03) Decided on 4 March 2004. 
38
  Republic of South Africa. (1996). Constitution of the Republic of South Africa Act 108 of 1996. 
?Preamble?.   
 65 
Not only are illegal immigrants excluded from the population and removed of all 
but the most basic of rights, they are used as a foundation on which political 
inclusion ? citizenship ? can be built. As Agamben points, out, the production of 
bare life ? marginal and precarious life ? is the foundation of politics and political 
life. Citizenship is an inherently political concept, and thus can be seen to have its 
foundation in bare life. However, it is a foundation that serves not to expose 
citizens to bare life, but to protect them from it. Thus, the South African 
Constitution grants citizens rights to far more than simple life; they are imbued 
with rights to social security, which ensure a basic quality of life and they are 
granted political rights, allowing them to play an active role in the political 
functioning and life of the nation-state. This is a stark contrast to the illegal 
immigrant, who has only bare life, the right to life, as the distinguishing feature of 
his/her existence. 
 
The Immigration Act does commit itself to controlling immigration ?within the 
highest applicable standards of human rights protection?39. However, this is a 
disingenuous claim, as the Act later goes on to advocate that illegal immigrants be 
treated in manners that are ?in compliance with minimum prescribed standards 
protecting his or her dignity and relevant human rights [italics in the original]?40. 
There is thus a qualification within the Act that makes it clear that the extent to 
which illegal foreigners can enjoy protection and human rights rests with the state 
and its prescriptions. We have already seen that the White Paper advocated the 
limiting of basic rights to this category of people and a truly ?bare? or minimal 
standard is in place. Going back to Joyce Tlou?s statement, the only human right 
that is relevant in the case of illegal foreigners is ?the right to life?. 
 
Here we see an entrenchment of state power and governmentality. As Schmitt 
wrote, ?Sovereign is he who decides on the exception? (cited in Norris, p. 5: 
2005). Through establishing minimum prescribed standards of human rights and 
entrenching illegal immigrants as outside of the population and normal course of 
law, the state is wielding its power to decide on the exception and enforce it. This 
                                                 
39
  RSA. (2002). Immigration Act. ?Preamble?. 
40
  RSA (2002).  Immigration Act. Section 34. ?Deportation and Detention of illegal foreigners?. 
 66 
is a clear method of enforcing sovereignty and state power through the state of 
exception. In prescribing minimum standards of human rights and consequently 
existence, the state is establishing its power as an arbiter of existence and a 
producer of populations.  
 
For, at the same time, it is out of this exception and in light of this contrast that 
citizenship is given its form. Going back to Schmitt?s formulation, the norm 
depends on the exception for its character and content. Thus, the prescription of 
the extent to which immigrants can enjoy human rights and the constant exposure 
of illegal immigrants to bare life is a manner in which citizenship in South Africa 
is given form; in the case of social security rights and protection from bare life, 
illegal immigrants provide the exception that the norm of citizenship depends 
upon. As De Genova writes, ?Illegality??is a social relation that is fundamentally 
inseparable from citizenship? (De Genova: 2002: p.422). This is so because 
without the concept and category of ?illegal? or ?illegality?, citizenship would have 
little meaning or substance. The two concepts are mutually dependant.   
   
It is thus apparent that the creation of a population deemed to be illegal and their 
exceptional treatment by the state and the law serves as a means of 
governmentality. By constructing illegal immigrants as separate, vulnerable, and 
excluded from the legal population, the South African state is able to create a 
foundation for belonging within the nation-state, and is able to give substance to 
this belonging. In the case of illegal immigrants, their exclusion and the treatment 
and denial of rights that characterises their existence in South Africa helps create 
the norm of citizenship. It is thus a form of population production and control that 
rests with the state. This is apparent in the conditions set out that form the bases of 
people?s exclusion and prohibition from becoming legal members of the South 
African population.  
 
 
 
 
 67 
Producing the ?right? population 
 
In addition to declaring that foreigners wishing to become permanent residents 
and thus legal members of the South Africa population have to be of ?good and 
sound character? (as obscure and problematic a definition as this is) and must be 
economically productive, self-sufficient, and obedient to the state, the 
Immigration Act sets out the following criteria as bases for excluding people and 
preventing them from entering the country and residing here: foreigners who ?are 
infected with infectious diseases?, have outstanding warrants of arrest or records 
of conviction against them, ?anyone previously deported and not rehabilitated?, 
and people who are acknowledged members of groups advocating terrorism or 
racial hatred are all classified, according to the Act, as ?prohibited persons? and 
are thus denied entry and residence in South Africa41. In addition, the following 
types of people are declared ?undesirable? by the Act and are also excluded from 
entering into South Africa and residing in the country: ?anyone who is or is likely 
to become a public charge?, ?anyone who has been judicially declared 
incompetent?, and any person who is ?an unrehabilitated insolvent?42.  
 
Thus, it can be seen that entry into South Africa, inclusion in the community and 
the granting of rights, and thus protection from bare life is reserved even further 
for people who meet specific criteria. In addition to not being criminals or 
advocates of hatred, people wishing to enter into South Africa legally, and thus 
not be exposed to bare life and ill-treatment by the state need to be, again, 
obedient and have no record of violating laws, including immigration laws, and 
cannot be economically vulnerable or unable to support themselves. Thus, South 
African immigration policy serves to exclude not only people who are criminals 
and may threaten public safety and security, it reserves rights and access to South 
Africa for those who will bring economic benefit, rather than those who will 
?become public charges? and place strain on the economy.  
 
                                                 
41
  RSA. (2002). Immigration Act. Section 29. ?Prohibited Persons?. 
42
  RSA. (2002). Immigration Act. Section 30. ?Undesirable Persons?. 
 68 
Here again, very specific qualities and characteristics are deemed requisite for 
inclusion in South Africa, and all those who do not meet these are deemed 
undesirable, prohibited, or, if they have entered into South Africa?s territory, 
illegal. Again, a mode of population production is present here, one that is used to 
ensure the population present in South Africa is law-abiding, economically 
productive, disciplined, and in compliance with the political practices of the South 
African state; all those who are not will be kept out. Thus, the function of 
immigration policies as a means of governmentality is brought to the fore and 
made clear. 
 
This is further emphasised by the declaration in the White Paper that skilled 
migrants must be attracted and play important roles in building the South African 
economy. It is also the stated intention of the Immigration Act to utilise 
immigration control as a means of, in addition to excluding unwanted and 
prohibited categories of people, ensuring that ?the South African economy may 
have access at all times to the full measure of needed contributions by 
foreigners?43. Thus we see that, in addition to placing restrictions on unwanted 
and unwelcome foreigners, immigration policies are aimed at attracting foreigners 
who will bring benefit to the country?s economy. 
 
It is common practice that ?immigration selection may be tied overtly to criteria 
of productivity, class, wealth, and skills.? (Peberdy: 2001: p.16) For example, in 
July 2005 the ?Draft Protocol on the Facilitation of Movement of Persons? was 
adopted by the Southern African Development Community (SADC) Ministerial 
Committee (Williams: 2006). One of the primary goals of this protocol is the 
granting of freedom of movement to migrants who are seeking employment in 
SADC states. It seeks to ease the process for migrants seeking to establish 
businesses and find work (ibid). In this way, it fits into line with the SADC Treaty 
which  
 
                                                 
43
  RSA. Immigration Act. (2002). ?Preamble?. 
 69 
?requires SADC to develop policies aimed at the progressive 
elimination of obstacles to the free movement of capital and 
labour, goods and services, and of the people of the region 
generally, among member states.? (cited in Williams: 2006: 
p.9). 
 
Here it emerges that efforts to establish the free movement of people in the SADC 
region are not driven by humanitarian concerns and ambitions of promoting and 
extending rights and liberties, but by issues of economics. 
 
This is an additional form of governmentality and population production, as it has 
at its heart an attempt to build a particular type of society and population; one that 
is productive and economically sustainable. Here it is apparent that skilled 
migrants and foreigners are placed at a much higher premium than unskilled 
foreigners, and thus have far higher status in the state?s eyes.  
 
This is made apparent emphatically in the White Paper, in which it is declared that 
 
?[South Africa?s] migration policy could choose to shape the 
future composition of the South African population by giving 
preference to certain types of individuals who are deemed to be 
more desirable as members of our national community than 
others. In this respect, for instance, the migration policy could 
choose to give preference to professionals or people with skills 
or higher education.?44 
 
Here we have an abundantly clear acknowledgement of the use of immigration 
policies as a form of population production. In this case, we see a clear intention 
on the part of the state to utilise immigration control as a means of creating the 
?right?, desirable population. In privileging one type of immigrant over others, the 
                                                 
44
  RSA. Task Team on international Migration. (1999). White Paper.  Section 7. ?Criteria for 
admission? 
 70 
state is exercising its ability to determine the bases for inclusion in the political 
community and shape this community in line with its discourse and interests.    
 
This practice is entrenched further through the fact that, whilst the Immigration 
Act emphasises the need to grant foreigners business permits so that they can 
bring capital and skills into South Africa, current immigration policies ?reject the 
idea of trader?s permits? and thus do not recognise this important aspect of cross-
 border movements and exchange. In fact, within the Immigration Act ?there is no 
specific mention of traders at all? (SAMP: 2001: p.5). This is despite the fact that  
 
?since 1994 informal sector cross border trade (or SME trade) 
between South Africa and neighbouring countries has increased 
significantly. Many of these traders hold visitor?s permits to 
enter South Africa to enable them to shop for their businesses in 
their home countries, and/or to sell goods brought from their 
home countries. While these traders may not strictly count as 
migrants or immigrants, they constitute a significant component 
of traffic through South Africa?s borders.? (Crush and Williams: 
2005: p.9. see also Peberdy: 1997) 
 
In this case it is apparent that South Africa?s immigration policies do not account 
for this aspect of migration and do not make any efforts to recognise or formalise 
it. This has the effect of marginalising this type of activity, despites its prevalence, 
and ensures that only skilled, professional business people are entitled to 
economic activity in South Africa. Again, immigration policy is playing a key role 
in shaping and giving form to the population deemed desirable in South Africa. It 
is apparent that this is one that is professional, highly-skilled, and educated, as 
opposed, to unskilled, uneducated, and engaged in in-formal trading. Again, a 
clear intention of population production is at work.     
 
This mode of governmentality and population production is inscribed in 
immigration policies, as the Apartheid immigration policy of attracting white 
 71 
immigrants shows. This approach has also been adopted around the world. For 
example, when the United States was seeking to establish itself as an industrial 
power, it welcomed the vast numbers of Chinese and other immigrant labourers 
that were arriving on its shores as they provided an extensive pool of cheap 
labour. However, once American industrial power was developed, ?the ranks of 
those held to be unworthy of admission into or citizenship in the United States 
expanded beyond the Chinese to include a variety of groups regarded as impure, 
unclean, idiotic, non-white or incapable of understanding the principles of 
republicanism? (Torpey: 2000: p.102). In this case, immigration was first used as 
a means of building the nation through permitting desirable immigrants, and, once 
the nation was constructed sufficiently, used as a means of maintaining and 
entrenching the nation, this time through the exclusion of immigrants.  
 
It is thus a recognised function of immigration policies. The acceptance of this 
function is not confined to states only. In South Africa, there has been growing 
praise of current immigration policies amongst members of civil society for their 
focus on skilled migration and efforts to attract economically beneficial 
foreigners. For example, the Immigration Bill was lauded by SAMP as being 
?extremely business friendly? (SAMP: 2001: p.4) and the Centre for Development 
and Enterprise comment that 
 
?The provision [in the Immigration Act] allowing for business 
permits is potentially of very great value to the country in 
attracting foreign direct investment and the importation of skills 
and capacities of direct benefit to growth.? (Centre for 
Development and Enterprise: 2005: p.2) 
 
In addition, Joyce Tlou, from the SAHRC, commented that the Immigration Act 
?is well-meaning in that it is focusing on skilled migration,?45 again giving 
credence and support to the position that immigration policy and economic 
interests and priorities are intertwined. There is thus recognition and support 
                                                 
45
  Interview with Joyce Tlou, conducted on 11 July, 2008. 
 72 
amongst civil society for the use of immigration as a form of population 
production, showing that the discourse of economic self-interest has been well and 
truly entrenched in South Africa.   
 
The myth of control: restructuring reality 
  
We thus see that immigration control is a method of creating a population and 
inscribing them within a particular reality, one based on identification, control, 
and regulation of the population in line with state interests and discourse. It is 
important to note, however, that the method adopted in South Africa, based on 
security, policing, and preventing immigration is criticised as being unsuitable to 
the South African context. As Loren Landau ? the director for the University of 
Witwatersrand?s Forced Migration Studies Programme ? points out, ?South Africa 
has an immigration policy that is uniquely ill-suited to its context. It is based on 
this myth of control, that you can and should control the borders.? However, 
?South Africa actually depends on migrant labour? and has this system built into 
its economic history and life46. 
 
Compounding this is the fact that South Africa shares a seven-thousand kilometre 
?largely unguarded?,  porous border with six other countries, the majority of 
which are ?sending? countries, which makes controlling the movement of people 
in the region difficult (Peberdy: 2001: p.20). Thus, efforts to control and prevent 
immigration into South Africa are ill-suited to the reality in which the state finds 
itself and have come to focus on a punitive approach in order to discourage 
migration, rather than a ?pragmatic? approach that recognises migration as a fact.  
 
The White Paper agrees with this position when it states that ?given?the 
difficulty of securing the borders policy emphasis on deportation will not 
significantly improve the situation.?47 However, rather than seeking to address the 
system as a whole, the White Paper instead argues that the best way to prevent 
                                                 
46
  Interview with Loren Landau, conducted on 19 May, 2008. 
47
  RSA. Task Team on international Migration. (1999). White Paper. Section 6. ?The need and 
parameters for a new policy?. 
 73 
illegal immigration into South Africa is to make South Africa an inhospitable 
place for immigrants to live in. 
In this way, immigration laws and policies are attempting to enforce a particular 
reality on migrants. As SAMP point out, 
?the stated goal is that the legislation will deter people from 
coming or staying in South Africa illegally and ?encourage? 
them to voluntarily repatriate by creating conditions that make 
South Africa an unattractive place to live? (SAMP: 2001: p.3). 
Within the White Paper it is noted that  
?Under the present circumstances people will continue to take 
enormous risks and endure personal anguish to enter South 
Africa illegally because of the attraction of the ?pull? factors. 
Therefore, policy emphasis should be given to reducing the 
?pull? factors which make South Africa attractive to them.?48  
In this way, the South African method of dealing with the fact of migration relies 
upon an attempt to entrench a reality that discourages this fact and makes it 
difficult to migrate.  
This has given rise to a situation in which immigration laws are in force without 
significance, as they try to guard against and prevent a reality that is already 
entrenched. This has given rise to extraordinary legal practices such as the 
empowering of the police and denial of rights already discussed, as well as a call 
on local populations to be actively involved in the identification and policing of 
illegal immigrants. This has created conditions in which the law is attempting to 
impose itself on a reality and has created opportunities for abuse and violation.  
 
                                                 
48
  ibid. 
 
 74 
As Agamben points out: ?Law is made of nothing but what it manages to capture 
inside itself through the inclusive exclusion of the [exception]: it nourishes itself 
on this exception and is a dead letter without it.? (Agamben: 1998: p.27) In this 
way, the law depends on an exceptional reality or limit in order to sustain itself 
and have form, and it is the attempt to encapsulate and regulate the exclusion 
within the ambit of the law that gives the law its force. Thus, in seeking to control 
the movements of people and impose a reality upon the region of Southern Africa 
that is at odds with current and historical movements and practices, the South 
African state is nurturing its own power and authority and expanding its 
conception of the law throughout society. This is done through the state of 
exception and creating a space within the law, and simultaneously in contradiction 
or violation of the law, and immigration policies through which exceptions ? 
migrants who make it across the border and who violate the state?s regulations ? 
can be dealt with. 
     
Klaaren and Ramji also assert that ?The illegal immigrant is not merely beyond 
law but is instead against law [emphasis added in original]? (Klaaren and Ramji: 
2001: p.40). Thus, illegal immigrants are exceptions, but they remain included 
within the ambit of the law as exceptions. This serves the purpose of putting force 
behind the law. At the same time, however, the significance of the law can be 
questioned. As Landau points out, ?Deportations and harassment doesn?t control 
immigration.?49 Additionally, David Cote points out that ?In Jo?burg you have a 
lot of police operations where hundreds of people will be rounded up and they'll 
be deported, only to come back in a week or so?.50 This has even been 
acknowledged within the White Paper, as shown above.  
 
This creates a situation in which the law has tremendous force behind it, but little 
significance, as the law?s attempt to prevent a particular reality and create a 
different one are falling short. This gives rise to a situation again in which the law, 
lacking significance, has to include the exclusion in order to sustain itself and 
have substance. But as the exclusion in this case is against the law, the law itself 
                                                 
49
  Interview with Loren Landau, conducted on 19 May, 2008. 
50
  Interview with David Cote, conducted on 12 May, 2008. 
 75 
comes to have little but force behind it. Agamben characterises conditions in 
which a state of exception predominates as being governed by a ?separation of 
?force of law? from the law? (Agamben: 2005: p.38); it is an ?anomic space in 
which what is at stake is a force of law without law? in which force predominates 
under the illusion of law, but is in fact without real legal substance or significance 
(ibid). The suspension and removal of rights in the cases of illegal immigrants and 
the application of force that lacks significance is thus very much a product of the 
state of exception, and an entrenchment of this paradigm in South Africa.  
 
It is a paradigm that is used in the production and protection of the population and 
that validates itself in the name of security. What is at stake, then, is the nature of 
the population that is to be protected and the characterisation of what is to be 
considered a threat. Through the use of an inclusive exclusion or exception, the 
South African state is firmly constructing illegal immigrants as ?threats? and 
enemies. At the same time, the exception or threat, through its inclusion as 
exceptional, gives character and form to the inclusion and provides a foundation 
and template for what can be considered the norm and desirable. The creation of 
an exceptional space and treatment within the law into which illegal foreigners 
fall provides the exception against which the norm can be measured and 
understood. In this way, the state of exception and its applicability in the case of 
illegal immigrants in South Africa provides a lens through which citizenship ? the 
norm and standard of inclusion ? can be understood. 
 
Conclusion 
 
It is apparent that within South Africa?s laws and policies, the exclusion of illegal 
foreigners lays the foundation for the standards of inclusion and citizenship. Just 
as illegal immigrants are regarded as parasitic, economically unskilled and 
unproductive, criminal and threatening to the South African state and population, 
citizens, though the presence and creation of the exception, are constructed as 
law-abiding, disciplined, skilled and economically productive, and deserving of 
state assistance and services. In the present South African context, the exception is 
 76 
created and used to give form to the norm. It is present within the laws and 
policies, as discussed in this chapter, but also within the implementation and 
enforcement of these laws. This will be the subject of the following chapter, 
which will examine what the effects of creating an exceptional status for illegal 
foreigners in South African law are. This will be done through documenting and 
analysing the ways in which immigrants are treated by police officers and within 
state institutions.  
 
 
 77 
Chapter Three: 
Policing immigration: police practices, the Lindela 
Repatriation Centre and the state of exception 
 
The previous chapter discussed and illustrated the ways in which illegal 
immigrants have been placed in a state of exception by South Africa?s current 
immigration laws and policies. These policies have served to construct illegal 
immigrants as enemies and threats to the nation-state and political community and 
have served to entrench this category of people as a group that is considered to be 
outside of the normal functioning of the law. They are, consequently, placed in an 
extra-legal or extraordinary space; in short, a state of exception. Having illustrated 
how this has been prescribed by the laws and policies in place, the proceeding 
chapter will detail and discuss the effect of current immigration policies and the 
placement of illegal immigrants in a state of exception. It will thus examine the 
methods of policing and controlling immigration that current laws and policies 
have given rise to.  
 
It has been argued that immigration policies and laws have been utilised by the 
state as a means of governmentality. They are methods used to produce both 
people and populations in line with the state?s discourse and assumptions about 
what sort of society is deemed desirable. What is at stake, then, is the nature, 
character, and identity of the population and the people that it comprises. 
However, this mode of governmentality cannot be simply viewed from the 
purview of the state?s laws and policies. These provide only the framework for 
actions within the nation-state and its territory. What is of more significance is the 
manner in which these policies, laws, and discourses are implemented and the 
practices they give rise to. In ?States and Illegal Practice: an overview?, Heyman 
and Smart argue that in order for the nature of state power and discourse to be 
understood fully, states need to be viewed and analysed ?from below? and ?from 
within? as much as ?from above? (Heyman and Smart: 1999: p.15). 
 78 
 
This approach entails examining not only the laws and policies in place but also 
the everyday practices and activities utilised by states in their quests to regulate, 
police, and control societies. It is thus an approach that requires moving the focus 
and analysis of state power away from the ?top-down? approach and grounding it 
within a more circulatory, ?capillary? understanding of power and discourse (De 
Genova: 2002: p.428). The focus then of this approach to understanding state 
power is not the top-level laws and policies in place, but rather the ways in which 
these policies are enforced.  
 
In the case of the state of exception, this approach is both valid and necessary. 
For, as Agamben contends, the state of exception has moved away from being a 
provisional measure used in times of threat or crisis to restore order to a working 
?paradigm of government? (Agamben: 2005). It is thus a measure that is not 
confined to particular cases of threat or disorder but has become a mode of 
operation for contemporary states. This means that the state of exception, whilst 
present and prescribed by law, is found in some of the everyday practices and 
mechanisms of the state. Thus, whilst it is important to analyse laws and policies 
as providing the framework for the state of exception, one needs to analyse the 
practices and responses this framework gives rise to in order to understand the 
implications and significance of the state of exception. 
 
In the South African case, the state of exception that is implicit within 
immigration laws and policies makes itself felt in important manners. The two 
most significant and telling instances are the ways in which immigration is 
policed and the practices utilised during the detention and deportation phase. In 
both of these instances important issues with regards to state power and discourse, 
institutional practices and mechanisms, and population production and 
governmentality make themselves felt. Thus, the focus of analysis in this chapter 
will be on the policing of immigration and implementation of immigration laws 
?on the ground? and the practices utilised during the detention and deportation 
phase. Again, the purpose of this analysis will be to examine the presence and 
 79 
effect of the state of exception in South African approaches to immigration, and to 
establish what significance this holds for how citizenship, belonging, and state 
power can be understood.   
 
An anthropology of the ?law? 
 
Previously, attention was paid to Section 41 of the Immigration Act, which holds 
that when requested to do so by a police or immigration official, ?any person shall 
identify himself or herself as a citizen, resident, or foreigner [italics in the 
original]?51. As mentioned by the SAMP report ?The South African Immigration 
Bill: A Legal Analysis?, this section of the Act has ?police state implications? 
(SAMP: 2001: p.11). SAMP is right to point to the important implications of this 
section of the Act as its implementation has had severe and disturbing 
consequences in South Africa.  
 
The South African Human Rights Commission (SAHRC) has pointed out that the 
section of the old Aliens Control Act (the Apartheid-era immigration legalisation 
that was maintained in the democratic period until being replaced by the 
Immigration Act in 2002) which ensured that all suspected illegal foreigners could 
be made to produce identification on demand amounted to an ?effective pass law 
requirement? (SAHRC: 1999: p.30). This requirement and disturbing reminder of 
the past has been maintained in the current immigration policy and when 
requested to, suspected foreigners are still forced to produce identification on 
demand or face the prospect of being detained and held as illegal immigrants.  
 
This has created a situation that the Human Rights Commission deems to be 
unconstitutional and in violation of human rights in South Africa as ?there is no 
legal requirement to carry identification documents on your person in South 
Africa? (SAHRC: 1999: p.20). In addition, Jonathan Klaaren of the University of 
the Witwatersrand?s Centre for Applied Legal Studies has argued that this section 
of the Act and the powers it grants police is in violation of the individuals? right to 
                                                 
51
  RSA.(2002). Immigration Act. Section 41. ?Identification?. 
 80 
security of the person, as it means that all are at the mercy of police or 
immigration officials and can be arrested without a warrant at any time with ?a 
view towards deportation? (SAHRC: 2000: p.11). 
 
Again, this has very disturbing and worrying implications and reminders of South 
Africa?s Apartheid past as it is a method of policing that focuses on controlling 
the movements of people and detecting offenders. As Bishop Paul Verryn of the 
Central Methodist Church declares, ?Police pursue immigrants as in the old 60?s 
and 70?s pass-law attacks on the Black community.?52 It is a clear sign of a state 
of exception or extra-legal practice being introduced and implemented in South 
Africa in order to deal with and police illegal immigration, as human rights, which 
are said to form the foundation of the post-Apartheid dispensation, have been 
superseded in the name of policing and controlling immigration. 
 
This is strikingly apparent in the practices adopted by police officers in South 
Africa, as not only are foreigners made to produce identification on demand and 
arrested if they fail to do so, South African citizens too are subjected to police 
requests for identification and have even been arrested for failure to produce 
adequate identification. This has created a situation in which common rule-of-law 
and constitutionality is suspended or superseded in the search for illegal 
immigrants and efforts to control the movements of people. 
 
This is a situation that can be seen to resemble either a state of emergency, in 
which the rule of law is suspended and replaced by rule by decree in order to 
protect society, or even a totalitarian form of rule, as individual rights are 
suspended or removed. As Agamben states, ?the state of exception appears as a 
threshold of indeterminacy between democracy and absolutism.? (Agamben: 
2005: p.3)  It is apparent, then, that the threat of illegal immigration and the 
uncontrolled movement of foreigners in South Africa is regarded by the state as 
sufficient a threat to warrant the removal of people?s rights. This serves to 
                                                 
52
  Interview with Bishop Paul Verryn, conducted on 1 December, 2008. 
 81 
enhance and entrench illegal immigrants? or foreigners? statuses as enemies or 
threats in South Africa, and places them within a state of exception.  
 
This has created a situation in which illegal immigrants and suspected illegal 
immigrants ? whether they are or are not ? are extremely vulnerable to police 
powers and has led to abuse becoming rampant in the name of immigration 
control and policing. For example, the Human Rights Commission ?found that 
assaults were commonly used during the apprehension procedure? (SAHRC: 
1999: p.33). In addition, Kaajal Ramjathan-Keogh states that 
 
?Police harassment is a very big issue. Especially if you look 
different, if you speak with a different accent or dress differently 
you?re more likely to be approached on the street and asked for 
your documentation; you?re more likely to be harassed and 
asked for a bribe if you cannot produce documentation; you?re 
more likely to be arrested and taken to a police station. And in 
addition to all this you?re more likely to be at the risk of being at 
the end of police abuse. We see that?s quite a significant 
problem.53? 
 
Thus, those who are suspected of being foreign and in the country illegally are 
vulnerable and open to abuse in the name of immigration control. This creates a 
situation in which suspected illegal immigrants live very precarious and 
vulnerable lives in South Africa. Again, Ramjathan-Keogh speaks of 
?intimidation, harassment, and xenophobia? as being the police force?s main 
mode of operation in dealing with immigrants ? illegal or not54.  
 
This has important implications for how state power and policing can be 
understood. Police violations and abuses of power fit into a cycle of corruption in 
which those with power ? which emanates and is derived from the state ? exercise 
this power over those without, especially the most vulnerable. This serves to 
                                                 
53
  Interview with Kaajal Ramjathan-Keogh, conducted on 31 March, 2008. 
54
  ibid. 
 82 
entrench power relations and dominance within a society and extends the state?s 
power into everyday relationships and interactions. Because illegal immigrants 
are, as mentioned in the previous chapter, ?against the law? and regarded as 
enemies by the state, this places them firmly within a rightless, marginal space in 
which they are vulnerable to state security measures.  
 
This marginality and rightlessness is made concrete through interactions with state 
officials and police. The fact that they are vulnerable and such ready victims of 
police abuse inscribes power relationships and distinctions between those who are 
for and those who are against the state within people. In this way, the abuses and 
violations which are the common lot of immigrants and those suspected of being 
illegally in South Africa serve as a means of entrenching state power within 
people.  
 
This is made concrete not only in occurrences of abuse, but also in the difficulties 
faced by people wishing to take legal recourse against their abusers. As 
Ramjathan-Keogh illustrates,  
 
?If you have a right violated it?s very difficult for you to lay a 
charge, to lay a complaint, and even if you do so you might not 
be able to see it through because you might get deported in 
between.?55 
 
In addition, she claims that  
 
?Police operate with relative impunity because there?s not much 
sanction against police officers who do operate in this manner. 
The Independent Complaints Department [ICD] which is meant 
to be a police watchdog is relatively ineffective. We?ve 
[Lawyers for Human Rights] submitted many complaints from 
this office and after that we get an acknowledgement that the 
                                                 
55
  ibid. 
 83 
complaint is received but after that, nothing. There?s very poor 
investigation and usually no real sanction on the police officer. 
There have been cases where we?ve sent a complaint to the ICD 
and then we copied it to the police station commissioner and we 
subsequently found the person who we lodged the complaint on 
behalf of was receiving phone calls from police officers 
harassing them and asking them to drop the case. They even 
received a phone call from the police station commissioner 
asking them to come into the station and have a chat with them, 
which is highly irregular when there is an investigation pending. 
So a lot of police officers, even those at high levels, are 
operating on their own mission, without really operating under 
procedures and guidelines. And there?s not much check on it, so 
it?s a very serious problem.?56 
 
This creates a situation in which those who act on behalf of the state and are 
imbued with powers of control by the state act with impunity against those 
without power and who are seen as enemies by the state. The result of this is 
twofold: firstly, it means that immigrants? human rights are often superseded by 
their statuses or perceived statuses as ?illegal?. This means that to be an illegal 
immigrant is to exist in a de facto rightless space ? a state of exception, which 
ensures that state power is unchecked and circulated and entrenched in day to day 
activities and interactions. This state of exception, and this is the second 
consequence, thus comes to form the basis of one?s identity and relationship with 
the state. 
 
In his paper, ?Immigration and the State of Exception: Security and Sovereignty in 
East and Southern Africa?, Loren Landau points to instances of police corruption 
and abuse and the lack of action or rebuke these activities receive as creating a 
situation in which ?government officials?legitimise or help create parallel-extra-
 legal-systems for policing foreigners? (Landau: 2005: p.338). Similarly, 
                                                 
56
  ibid. 
 84 
Ramjathan-Keogh states that xenophobia and police harassment of foreigners is 
?clearly illegal? but reiterates that police are allowed to ?act with impunity?. This 
again enforces a state of exception or exceptional status on immigrants and 
ensures that they are the subjects of state power and are, in many cases, powerless 
against this. 
  
The fact that xenophobia and abuse of immigrants is ?clearly illegal? yet still 
takes place frequently and is not acted upon by the government shows that illegal 
immigrants clearly are in an extra-legal space in which legal violations are not 
followed up on and the law is not upheld. In addition, violent actions carried out 
by state officials which violate the rights of foreigners and illegal immigrants 
(however limited or minimal these may be) and elicit no formal response or 
rebuke have been described by SAMP as akin to ?state supported violence? 
(SAMP: n.d.: p.2). This is, then, as Agamben describes, a space in which law is 
absent or minimal and force predominates. Clearly, then, a state of exception 
applies.  
 
It is possible to assert that the state of exception applies in this case as it is not a 
simple case of people acting in corrupt, illegal manners. Whilst police corruption 
and violence can be explained as illegal actions perpetrated by individuals the fact 
that this type of illegality is so rampant and continues unabated points to a bigger 
problem. It is the very status and position in society of immigrants that is at the 
heart of the cycle of abuse and their vulnerability at the hands of the police. 
Because they have been placed in a state of exception through the law itself they 
are constructed as outside of the normal course of law and thus in a space in 
which illegality can be considered acceptable. The state of exception can be 
understood as a ?no-man?s land between public law and political fact, and 
between the juridical order and life? (Agamben: 2005: p.1). 
 
Thus, illegality and vulnerability are products of the law itself, and of its 
subsequent suspension. In a state of exception law recedes and force 
predominates. Thus, illegal immigrants in South Africa are vulnerable to the law 
 85 
and to the force that has replaced it in this exceptional space. This makes police 
violence and corruption possible, and establishes these actions as more than 
individual criminality. They are, rather, evidence of the state of exception as an 
everyday function of the state and law.  
 
Understanding state power 
 
The presence of this rightless state of exception ensures the state and its officials 
are imbued with the ability to define people and populations. This is done through 
the law, as already detailed, but is made explicit through actual actions. The denial 
of rights and the frequent occurrences of abuse which come to characterise 
immigrants? experiences in South Africa serve to inscribe them with an identity. 
This is the identity of enemy and outsider and is made concrete through state 
abuses, harassment and intimidation. Extending this cycle of abuse to citizens 
who are only perceived to be illegal foreigners further entrenches this identity as it 
shows that state protection and inclusion is extremely vulnerable and dependant 
on tolerance and consent by the state.  
   
This is made apparent in cases of police abuse, in which one?s status as ?illegal? 
supersedes one?s human rights. It is further entrenched in instances in which the 
citizenry itself is at the forefront of policing and control. Within the White Paper 
on Immigration, the South African government calls on communities to engage 
actively in policing immigration and seeks to make the ?[South African] 
community responsible for cooperating with internal policing actions to ensure 
that illegal immigrants are not attracted to South Africa? and to ?ensure that 
illegal aliens are not harboured within the community.?57 Thus, it is a 
community?s and citizenry?s responsibility to police immigration. 
 
This has been taken to an extreme in cases of vigilantes on the South African 
borders and within communities who have taken it upon themselves to seek out 
                                                 
57
  RSA. Task Team on International Migration. (1999). White Paper. Section 6. ?The need and 
parameters for a new policy?. 
 86 
and ?repatriate? illegal immigrants58. In addition, Landau points to ?Operation 
Buyulekhaya? (Operation ?Go Back Home) ? in which ?armed gangs of South 
African citizens claiming to be members of the ANC, the South African 
Communist Party, and South African National Civic Organisation embarked on a 
campaign to rid Alexandra Township of all foreigners? (Landau: 2005: p.342) ? 
as a further instance in which state power and immigration policing has been 
usurped and exercised by the citizenry, rather than state officials.  
 
For Landau, instances of police corruption and citizen policing represent ?a 
privatised realm of law enforcement [which exists] largely outside government 
regulation and public security? (ibid). For him, these activities ?threaten to 
undermine the form of sovereignty South Africa is actively working to effect? 
(Landau: 2005: p.347). He thus sees the state of exception as a threat to South 
Africa?s sovereignty and security, as sovereign powers are now being usurped 
from the state by ordinary citizens and corrupt police officials.  
 
This is, however, a misunderstanding of both the nature of state power and the 
state of exception on Landau?s part. For whilst sovereign powers are being taken 
on by the citizenry in cases of vigilantism and police are being afforded 
opportunities to act as laws unto themselves, it is incorrect to view this as 
reducing state power and control. For it is important to note who, or what types of 
people, are the objects of this extra-legal practice. It is the category of people 
declared or suspected of being ?illegal? by the state. It is thus a people?s 
relationship with the state that defines their status within law and within society. 
Groups of people who are imbued with power by the state ? both police offers and 
citizens ? are able to exert extraordinary power and control over another category 
of people who have been declared ?illegal?, unwanted and in effect, rightless by 
the state. 
 
It is thus the relationship between groups of people and the state which comes to 
mediate relationships between groups of people themselves. Rather than being 
                                                 
58
  Koch, E. and Chiledi, A. ?An evil story of fascism in our backyards?. article appearing in the 
Weekly Mail and Guardian,. 3 to 9 February, 1995. 
 87 
seen as a threat to state power, this should be seen as an extension of power, as 
people have now taken on and acted according to the statuses and subjectivities 
conferred upon them by the state. Citizens who have been granted human rights, 
power, and the right to belong in South Africa by the state are exercising these 
rights through expelling and hounding out non-citizens. In these cases, people?s 
relationships and statuses are being determined by the state, and are being 
reproduced in their own interactions.  What we see, then, is that state power is 
indeed circulatory and diffuse throughout society, as it sets down parameters for 
people to act and instils in them identities or subject positions on which action can 
be based. In this case, it is the difference between citizens, state employees, and 
the category of people declared ?illegal? or foreigners that determines their 
relationships. 
 
In this way, state power to define and categorise ? in effect to create subjects ? is 
affirmed and entrenched. This shows that the state of exception and the marginal 
status it confers on people, rather than undermining state power and sovereignty, 
actually entrenches and enforces it. It thus fits in clearly with a mode of 
governmentality that is premised on population production. Taking on state-
 conferred subjectivities and acting accordingly only serves to entrench and make 
this form of population control real. 
 
Producing the population ? part two 
 
The significance of this entrenchment of state power lies in the fact that two types 
of population are produced: in the first instance, an illegal, excluded population or 
category of people is created, which is highly significant in itself. But more 
importantly, the exclusion of people and creation of an illegal population serves to 
create, secondly but simultaneously, a legal population too. Through accepting 
and actively creating a rightless space for illegal immigrants the state and its 
employees are entrenching differences within the population and ensuring that this 
category of people remains outside of the population and vulnerable to 
exceptional treatment. 
 88 
 
When this exceptional treatment and removal of rights is extended and taken up 
by the legal population, a true distinction and power relationship is established. 
For not only are excluded, illegal peoples made powerless before the state, they 
are made powerless before the rest of the population too, as legal citizens are 
called on by the state to police communities and have taken it on themselves, in 
some instances, to purge foreigners from communities.  
 
They thus become vehicles for the exercise of power and serve to make 
distinctions between those who are included and those who are excluded, between 
citizens and outsiders, real. Actions premised on removing foreigners from the 
territory or community send very real and significant messages about who is to be 
included and who is excluded, and also establish the power relationship between 
the two sets of people.  
 
These power relationships stem from the state, as it is the state that mediates 
people?s access to rights, statuses within the nation-state, and claims to belong. 
Thus, even in interactions between individuals and communities, state power and 
subjectivities are present, as it is this power to produce populations and 
subjectivities that can be seen to inform actions. In this way, the citizen/outsider 
divide is created by the state, but is enforced through the population. This, in turn, 
not only enforces the division, but state power too.  
 
We thus see that state power is circulated throughout the community through 
populations. These populations are themselves products of this state power. State 
power, then, needs to be understood as encompassing the ability to produce 
populations and categories and have these entrenched throughout society. Thus, 
the production of one type of population is not only made possible through the 
production of another, but in fact relies on this.   
 
 
 
 89 
Escaping state power? 
 
It is important to note, however, that this form of power and population 
production is not entirely successful and binding. There are instances of people 
resisting state-mediated identities and distinctions and offering assistance to 
vulnerable, marginal, illegal people. For example, the Johannesburg Central 
Methodist Church and its Bishop, Paul Verryn, has developed a reputation for 
protecting and sheltering illegal immigrants and refugees. The church?s 
community has ?vowed to fight tooth and nail against police who violate the 
rights of refugees staying at the cathedral?s premises?59 and has emerged as an 
important challenger to state power and provider of a place of safety to many who 
are vulnerable.  
 
The church had an ?open-door policy for more than twenty years?, and was 
initially a place of refuge for homeless and impoverished people60. Then, ?about 
four or five years ago?, Bishop Verryn ?became aware of the fact that people 
coming through the borders were very vulnerable on our streets; they were being 
dispossessed of everything they had, obviously often violently assaulted, and were 
particularly vulnerable [and so] decided then to open the doors? of the church to 
immigrants.  
 
?Since then the numbers have grown and grown and grown? and the church 
provides shelter for up to 1, 600 people at a time61. The church is an interesting 
case of  an alternative space and challenge to state power, for not only does it 
provide shelter to people, regardless of their legal status, it is also attempting to 
create an new community within Johannesburg. At the church, ?[They have] 
opened up a school which is run by a Zimbabwean teacher and street kids are now 
coming to the school voluntarily.? The church also has  
 
                                                 
59
  Seale, L. ?Church to tackle cops over abuse of refugees?. article appearing in The Star. 
Thursday, 31 January, 2008. 
60
  Interview with Bishop Paul Verryn, conducted on 1 December, 2008. 
61
  ibid. 
 90 
?a full school, a small cr?che which caters for new-born babies, 
and a completely fitted out pre-school in the basement of the 
building which takes over seventy kids. [They] have as many 
educational processes as possible.?62 
 
In a climate of hostility, suspicion, and exclusion, Bishop Verryn 
 
?want[s] to create the kind of atmosphere where people can 
learn, where they can get skills, where they can be empowered 
so they can enter South African society and participate in the 
areas in which we are vulnerable.?63  
 
The church is thus attempting to create a new community and provide an 
alternative regime of immigration and way of interacting and dealing with 
immigrants in South Africa. Whilst the state is attempting to create the 
community through exclusion, the church is attempting to create a community 
through inclusion and embracing immigrants. It thus provides an alternative and 
challenge to state power and discourse.   
 
Other organisations such as Lawyers for Human Rights, M?decins Sans 
Fronti?res, the Legal Resources Centre, and the University of the Witwatersrand?s 
Law Clinic are also active in attempts to assist and protect refugees, asylum 
seekers and immigrants who are vulnerable to abuses in South Africa. This is a 
clear sign that the totalising approach to and view of state power, prevalent in the 
work of both Foucault and Agamben, needs to be avoided, or at least tempered. 
This caveat should not, however, diminish the importance and validity of their 
work and approaches to issues of state power and control.  
 
Even in the face of civilian resistance and rejection of state-imposed identities and 
vulnerability, the South African state has remained belligerent and focused on 
population and identity production. Bishop Verryn, for example, has come under 
                                                 
62
  ibid. 
63
  ibid. 
 91 
fire from Members of Parliament who have accused him of ?breaking the law by 
harbouring illegal immigrants and criminals? at his church and have even warned 
him that he, in the words of the National Assembly?s committee on Home Affairs? 
chairperson, Patrick Chauke, ?can be charged? with breaking the law and 
contravening the Immigration Act64.  
 
This was an instance of the law being invoked to defend state power in the face of 
a challenge. At the same time, on the 30th of January, 2008, police raided the 
church and ?basically arrested the whole building?.65 According to Bishop 
Verryn, ?It was an illegal raid and did not have legal authority on five counts.? 
 
As he recounts,   
 
?Ostensibly [the police] came looking for drugs, ammunition 
and weapons ? they found none. And then they turned it into a 
searching for asylum papers thing. They basically arrested the 
whole building. They held them in custody and then they 
released about 800 and took 500 away. Ultimately none of the 
charges stuck and ultimately the thing was dropped.?66 
 
Here we have a case of the state resorting to extra-legal measures to deal with a 
threat or alternative to its power and system of relations. Here we see the state of 
exception in action, as it entails a suspension of the law in the name of security, 
protection and reinforcing state power.  
 
In addition, Ramjathan-Keogh states that Lawyers for Human Rights and the 
government, despite having a ?cordial, amicable relationship? often become 
?opponents in the system?67. In this way, it is apparent that whilst the state?s grip 
on power and the population is not complete, efforts are made continuously to 
                                                 
64
  Mkhwanazi, S. ?Illegal aliens living in your church, MPs tell cleric?. article appearing in The 
Star,  Thursday, 27 March, 2008. 
65
  Interview with Bishop Paul Verryn, conducted on 1 December, 2008. 
66
  ibid. 
67
  Interview with Kaajal Ramjathan-Keogh, conducted on 31 March, 2008. 
 
 92 
enforce this power and challenge those who do not subscribe to and embrace state 
relationships and categorisations.  
 
This is because, in many ways, state power rests on the ability to mould and shape 
populations and enforce categories. If these categories are binding and spread 
throughout relationships and interactions at all levels of society, state power can 
be comprehensive and entrenched. It thus relies on circulation and diffusion. 
Efforts such as those of Lawyers for Human Rights and the Johannesburg Central 
Methodist Church threaten this circulation and entrenchment and thus oppose or 
threaten state power. This is why the law ? the state?s recourse and foundation of 
power ? is often invoked by the state, such as in the case of Bishop Verryn, in 
instances when power is challenged. Here we see that the law is central to state 
power and is invoked in service of this. At the same time, the law is also revoked 
in some instances to protect state power. It is for this reason and because of this 
state practice that the state of exception presents a valuable contribution and mode 
of inquiry into state power. 
 
The significance of the state of exception as a means of enforcing state power is 
apparent in the manners in which the state, when threatened or challenged, resorts 
to the law as a means of reinstating control over society and wayward elements 
within it. As Foucault points out, the objective of power and authority is the 
creation of docile bodies. This refers to both individual bodies, who become 
disciplined and attuned to the rhythms and dictates of production, reproduction, 
and consumption, as well as to social bodies ? i.e. populations ? that are instilled 
with knowledge of and respect for authority and the state (Foucault: 1991). Those 
who challenge this authority, such as migrants who do not follow correct legal 
procedures or members of the population who seek to protect categories of people 
designated ?illegal? thus often become opponents or threats to the state. It is in 
these cases that the realm of the state of exception is entered.  
 
 
 
 93 
Policing the population 
 
This realm and its significance as a mode of governmentality and population 
production is felt in the methods of policing utilised in South Africa. As 
mentioned, these methods have manifested themselves in extra-legal practices 
being adopted by the police as well as in community vigilantism which is 
legitimised and even encouraged by the state. This serves to create firm barriers, 
identities, and relationships between citizens and excluded people, thus giving 
form and content to these different identities. Further examples of police practices 
serving to entrench these distinctions and the state of exception within society are 
apparent in the manners in which investigations and searches for illegal 
immigrants are carried out.  
 
According to the Immigration Act, a police officer may question and detain a 
person for being in the country illegally if the ?officer has reasonable suspicion 
that you are unlawfully in the country.?68 In these cases,  
 
?They can come up and ask you to identify yourself. You have 
to identify yourself either as a citizen, as a permanent resident or 
as a temporary foreigner. If you're unable to do one of those 
three then you are considered an illegal foreigner and you can be 
arrested at that point.?69 
 
It has been pointed out and argued by commentators and legal experts that the 
emphasis in the Act on ?reasonable grounds? has been interpreted by police as 
granting them a right to ?arrest or detain people who look or behave foreign, not 
illegal? (SAMP: n.d.: p.3). As David Cote points out, because the qualification 
?on reasonable grounds? is so broad and undefined, it has created a situation in 
which ?you'll look a little too Muslim, or? too dark to be a South African,? or 
 
                                                 
68
  Interview with David Cote, conducted on 12 May 2008. 
69
  ibid. 
 94 
?You may be walking around Hillbrow and they'll say you look 
too dark or you speak a funny language and someone will come 
up and say 'Where's your ID, where's your ID?' If you can't 
produce anything then you'll be arrested at that point as an 
illegal foreigner.?70 
 
Here it can be seen that the wide powers granted to police in the name of 
immigration control have created exceptional circumstances in which state 
officials and employees are given the power to determine who belongs and who 
does not, and in so doing, determine who can be regarded as a member of the 
population and who should be excluded. Here we see that the power contained by 
and transmitted by the state entails the ability to determine what makes a person 
suitable for inclusion in the social body; it is the power to define national and 
communal qualities and characteristics and ensure that these are protected and 
circulated throughout society. 
 
At issue again, then, is population production and the creation and maintenance of 
the ?right kind? of society. This society may be defined according to economic 
criteria ? migrants who come ?to steal jobs? and social services are not to be 
tolerated and must be deported ? , in terms of people?s obedience to the law ? 
foreigners who are routinely blamed for crime in South Africa too are a social 
threat and scourge that must be eliminated and removed from society ? or even 
according to ethnic, linguistic, or racial criteria ? people who are seen as too dark, 
who dress differently, and who cannot speak local languages are regarded as 
illegal foreigners and have been arrested and deported; in one reported instance, a 
South African woman was even denied an Identification Document by Home 
Affairs officials because she was deemed ?too ugly to be a South African?71. 
What is important here is to acknowledge how these criteria frequently originate 
from the state and are enforced with the backing or in the name of state power. 
                                                 
70
  ibid. 
71
  Anon. ?Woman told: you?re too ugly for an ID?. article appearing in The Witness, 25 April, 
2008. 
 95 
Population production is a key feature of state power and it can be seen to be at 
work in all the instances mentioned above.  
 
This is because state power encompasses the ability to determine belonging and to 
enforce the barriers erected in order to police and control this. Hence, police have 
launched operations such as Operation Crackdown, launched in 2000, which have 
functioned as ?crime blitz[s]? and have entailed sweeping the streets and ?areas 
predominantly populated by black immigrants? in order to detect and arrest illegal 
foreigners (Klaaren and Ramji: 2001: p.36). In addition, the South African 
National Defence Force (SANDF)  
 
?uses roadblocks both within short distances of the border and 
within the central economic region of Gauteng to detect and 
arrest suspected undocumented migrants. Additionally, the 
SANDF operates and patrols the electrified fence that is set up 
along part of the border between South Africa and 
Mozambique.? (Klaaren and Ramji: 2001: p.41) 
 
State power and force is thus at work in efforts to define and maintain definitions 
and barriers between populations, between those who belong and those who do 
not. Police operations and ?crackdowns? on illegal migration have been criticised 
for ?criminalising? migrants and foreigners (Peberdy: 2001). This is exacerbated 
by the fact that migration offenders are frequently detained in police cells 
alongside criminals, rather than in separate facilities (SAHRC: 1999). The 
deployment of the SANDF and its use of force in policing immigration clearly 
indicate that undocumented/illegal migrants are considered enemies and threats to 
South Africa, and must be deterred and removed at all costs. This indicates clearly 
how state power is in operation and is exercised in the creation of categories of 
people; the illegal, criminal, threatening migrant is created and maintained 
through state power, just as the legal, included, citizen too is produced through 
this antithesis and practice of state power.     
 
 96 
It is also apparent that this aspect of state power infuses and disperses throughout 
society. The fact that ?reasonable grounds? is a fallible, ill-defined concept has 
resulted in a situation in which anyone could be an illegal immigrant and South 
African citizens have been arrested for failing to produce identification 
documentation on request (SAHRC: 1999). This fallible section of the Act and the 
vast powers given to police have thus created a situation in which the right to 
freedom from arbitrary arrest, the right to security of the person, and the right to 
be presumed innocent until proven guilty have all been eroded (SAMP: n.d.: p.3). 
Here again we see that the legal order can be suspended and ignored in the name 
of population production and the protection of society. A state of exception, then, 
is very much present and at work in the production of the population and different 
categories of people within this.  
 
We have examined the practices used by police in arresting and detecting illegal 
immigrants as a key method in which the state of exception is utilised and 
entrenched as a method of control and the construction of subjects. Widespread 
instances of abuse, corruption, harassment and infringement of human rights 
clearly construct illegal immigrants as vulnerable, marginal, excluded people. 
 
In so doing, this mode of policing sets out a clear demarcation between the legal, 
acceptable population and the enemies of this population and the state ? illegal 
immigrants. It thus serves to produce and enforce identities which stem from the 
state. A clear indication of the centrality of the state and its powers to confer 
statuses and identities on people is contained in the common police practice of 
destroying identification documents held by refugees or asylum seekers.  
 
As David Cote illustrates, it is common for police officers to ?look at [one?s] 
asylum seeker permit and say ?This isn't a real permit, this is nothing,? and then 
they may rip it up?72, thus ensuring that the victim is reduced to a marginal, bare 
status in South Africa. This practice and the importance that identification 
documents take on entrench identities that are mediated by the state. In cases such 
                                                 
72
  Interview with David Cote, conducted on 12 May, 2008. 
 97 
as this, the identification document becomes the central object and signifier of 
one?s status and right to reside in South Africa.  
 
The removal or absence of this document leads to the removal or absence of 
legality and a legitimate presence in the country, thus paving the way for 
vulnerability and exclusion. As SAMP point out, this practice and the common 
practice of arresting people merely on the suspicion that they are ?illegal? gives 
police the power to ?actively [make] people illegal? (SAMP: n.d.: p.3). Here, the 
state and its employees? ability to define and produce people and categories is 
made concrete and state power is entrenched firmly as the arbiter of identity.  
 
The destruction of identification documents by police officers in South Africa, 
and the accompanying vulnerability, marginality, and exposure to violence shows 
that people?s statuses and rights to reside in South Africa are dependant on the 
documentation they posses and the whims of state employees. Again, the state and 
its representatives are imbued with the power to define who belongs and who does 
not, who is to be deemed fit for inclusion, and who should be forced out.  
 
Here again a clear demarcation is made between a legal population and an illegal 
one, and this is proven to be an issue stemming from the state. The extra-legal 
practice of destroying identification documents and thus rendering people ?illegal? 
can be viewed as a means of circulating state power as it entrenches the state?s 
ability to define and declare people legal or illegal. Whilst corrupt practices by 
police officers may be seen as undermining the state and creating extra-legal 
spaces that threaten or marginalise state power, it can also be argued that this 
practice, to reiterate, re-enforces state power as it entrenches various identities and 
power relationships, which are derived from the state and its mode of biopolitics. 
 
It is precisely people?s relationship with the state that constructs them as powerful 
or vulnerable, and citizen vigilante groups and abusive police officers alike are 
acting on and in accordance with this when they attack and abuse migrants. As 
David Cote points out, police and immigration officials are the ?gatekeepers? of 
 98 
society for immigrants and foreigners and thus access to social structures and 
inclusion in society depends on and is mediated through them73. In destroying 
identification documents, neglecting or eroding basic rights, and acting in abusive 
and corrupt manners, state officials are clearly shutting the gate on outsiders and 
ensuring that entry into the legal, acceptable community is barred. 
  
The fact that the destruction of an identification document paves the way for 
abuse indicates how fragile and vulnerable migrants are in South Africa. It also 
indicates that the separation between protected and unprotected life, between 
human rights and vulnerability, lies in the identification or distinction made by the 
state. The granting of refugee or asylum seeker status represents a veil of 
protection and a veneer of entitlement to rights; on stripping away this veil state 
officials are able to remove protection and place migrants in an exceptional, 
vulnerable state, thus showing that human rights and inclusion in the social and 
political community are dependant on state-conferred identities and the protection 
of state officials. Without these, life is precarious indeed.  
 
In this way, state power and ability to define people and populations and to set the 
grounds for inclusion and exclusion is entrenched and given real substance. This 
serves to further population control, regulation and production and inserts a clear 
demarcation between a legal and illegal population, between the population that 
?belongs? and the one that is considered ?illegal? and unwanted. Here it is apparent 
that citizenship and the power of belonging encompasses the ability to enforce 
divisions between the included and excluded population, and places the excluded 
at the mercy of the legal citizenry. This is apparent in the White Paper on 
International Migration?s calls for a community-based approach to immigration 
policing and the identification of illegal immigrants, as well as in the power 
relations between employers and employees that are made possible through 
categories such as legal and illegal.  
 
 
                                                 
73
  Interview with David Cote, conducted on 12 May, 2008. 
 99 
Invisible immigrants versus active citizens 
 
Illegal immigrants are, in Ramjathan-Keogh?s words, ?people who are highly 
vulnerable, highly exploitable?74. Because they are in the country illegally and 
South Africa?s immigration policy aims to ensure that when immigrants or 
foreigners are employed they do not fill positions of employment that may be 
filled by ?suitably qualified citizen[s]or resident[s] [italics in the original]?75 their 
employment is often gained against state wishes and laws. This ensures that 
illegal immigrants are employed covertly and are thus in positions in which they 
are unable to enforce or lay claim to standards of employment and labour rights. 
 
Added to this is the fact that, because, illegal immigrants cannot open bank 
accounts, employers often ?refuse to pay?or give some difficulty in paying? 
them, again ensuring that illegal immigrants? ?economic rights?are very, very 
difficult to enforce?76. Here again, a means has been created of enforcing a divide 
between the legal population and the category deemed illegal. Due to the marginal 
status of illegal immigrants, they are, in fact, placed in positions of powerlessness 
and are made highly exploitable.  
 
This assertion is affirmed by Machava and Polzer, who, in their case study of 
Mozambican immigrants employed in the Bushbuckridge district in South Africa, 
argue that 
 
?Mozambicans who remain undocumented are the most 
vulnerable to labour exploitation in industries such as 
agriculture or domestic work. They are not excluded from 
working in these industries, but are employed in the most 
insecure, temporary and physically demanding jobs.? (Machava 
and Polzer: 2006: p.171) 
 
                                                 
74
  Interview with Kaajal Ramjathan-Keogh, conducted on 31 March, 2008. 
75RSA. (2002). Immigration Act . Section 27. ?Permanent Residence?. 
76
  Interview with Kaajal Ramjathan-Keogh, conducted on 31 March, 2008 
 100 
Machava and Polzer affirm this through documenting how these migrant labourers 
are at the mercy of their employers who frequently deny them the time off 
required to apply for identity documents or simply hold these documents on 
behalf of the workers, thus denying them access to these and, consequently, the 
ability ?to move freely to seek alternative employment? (ibid). At the same time, 
?they cannot apply for government social welfare payments as a safety net?, and 
are thus kept ?quiet and captive? (Machava and Polzer: 2006: p.172). This gives 
the legal population great power over them and serves to entrench different 
identities and relationships between peoples based on their relationships with and 
statuses conferred by the state. The citizenry, who are legal and empowered by the 
state, have the ability to exploit, hold captive, and exercise great power over those 
whose status, or lack of legal status, leaves them defenceless and vulnerable.  As 
Human Rights Watch note in their report into xenophobia and violence against 
foreigners in South Africa,  
 
?The almost complete lack of accountability for abuses 
committed against undocumented farm workers has led to some 
horrific instances of violence against undocumented migrants.? 
(Human Rights Watch: 1998) 
 
Coutin argues that illegal immigrants are forced into ?spaces of non-existence? 
and their existence is characterised ?by forced invisibility, exclusion, subjugation, 
and repression? that serves to erase their ?legal personhood? (Coutin: 2000: p.30). 
This creates conditions and forms of existence in which police harassment and 
abuse, civilian vigilantism, and exploitation by employers are common-place and 
characteristic of ?illegal? existence. This thus places illegal immigrants in 
marginal, exceptional, extra-legal spaces in which human rights and basic 
standards do not apply. This is in contrast to the treatment meted out to South 
African citizens.  
 
The formal intentions of the South African government are to create a vibrant, 
active political community of citizens in which every person is free to participate 
 101 
in public and political life and is imbued with rights and entitlements that allow 
them to do so. For example, the South African Constitution grants all citizens the 
right to make political choices, and the right to vote, campaign for and participate 
in political parties and causes, and form political parties77. In this way, citizens are 
given clear rights to active participation in political and community life. Citizens 
are also granted rights to freedom of speech and freedom of assembly78. They are 
thus, on a formal level at least, given the rights to have presence and power in 
political and social life. At the same time, ?Everyone has the right to fair labour 
practices?79 and ?No one may be subjected to?forced labour?80. Here, again, 
citizens are protected and empowered by the Constitution and Bill of Rights. This 
is a stark contrast to the invisibility and vulnerability of illegal immigrants.  
 
This invisibility thus provides the contrast or exception to citizenship and ensures 
that divisions between the included and excluded are substantive and clear. This 
division is further entrenched by the ability of citizens, once their rights have been 
violated, to take recourse and action against the state. For example, the South 
African child who was arrested for being ?too dark to be a South African? and 
?almost deported to Mozambique? was awarded R90 000 in damages after 
instituting a successful case against the Minister of Safety and Security81. In this 
case, a South African citizen was able to exercise rights and be compensated for 
the violation of his rights as a citizen. In contrast, foreigners and illegal 
immigrants are, as mentioned previously, often subjected to abuse at the hands of 
police and are powerless to do anything about it.  
 
As mentioned earlier, the police?s Independent Complaints Department is 
ineffective and the state is loathe to take action against officers and officials who 
violate the rights of migrants. Migrants have, in many cases, been prevented from 
                                                 
77
  RSA. (1996). Constitution of the Republic of South Africa Act. Chapter 2. Section 19. ?Political 
Rights? 
78
  ibid. 
79
  RSA. (1996). Constitution of the Republic of South Africa Act. Chapter 2. Section 23. ?Labour 
Relations?. 
80
  RSA. (1996). Constitution of the Republic of South Africa Act. Chapter 2. Section 13. ?Slavery, 
Servitude and Forced Labour?.  
81
  Venter, Z, ?Damages for boy considered to be ?too dark??. article appearing in The Star, Tuesday 
11 March, 2008. 
 102 
following up on complaints against arresting police officers because they have 
been deported before their complaints can be heard in full82. In addition, the 
SAHRC notes that it is common for detainees in the Lindela Repatriation Centre 
to be deprived of the free phone calls and opportunities to contact friends or 
family due to them by law (SAHRC: 2000), effectively shutting them off from the 
outside world or legal population and ensuring their invisibility. In this way, there 
is a firm barrier erected between the invisible illegal immigrant and the politically 
active, empowered South African citizen. The creation and enforcement of 
migrant invisibility is done through legal and extra-legal avenues, ensuring that 
the state of exception is prevalent in the creation of barriers and affirmation of the 
divide between the legal and illegal population. 
 
The essence of political power, according to Thomas Carl Wall is ?the power to 
suspend (not apply) law and thus to create a sphere of beings without 
qualities?whom every being, insofar as he or she is alive, may be? (Wall: 2005: 
p.40). Through citizens? violence against and exploitation of illegal immigrants 
and police arrests, abuses, and harassments a pattern is enforced in which those 
with political power ? the power derived from the political status of citizenship ? 
exercise power over the non-legal excluded population. Here we see that political 
power and the ability to enforce extra-legal spaces is granted to the legal 
population, thus establishing them as bearers of political power. In this way, clear 
distinctions are made and enforced between the legal and illegal population, as 
defined by the state. Here we see that the exceptional, marginal status of one type 
of population is vital to giving form and power to the status of another type; the 
norm that is citizenship depends on the exception that is the illegal immigrant.  
 
Institutions, power and the production of subjects   
 
This divide between the legal and illegal population is, then, the product of state 
power and identities; the utilisation of the state of exception is central to this and 
the circulation of state power. So far, this has been examined in the context of 
                                                 
82
  Interview with Kaajal Ramjathan-Keogh, conducted on 31 March, 2008. 
 103 
relationships, interactions, and practices on a micro-level. An additional level at 
which state power operates is within institutions. These are exceptionally 
powerful mechanisms of discourse dissemination and population and identity 
production. 
 
In his book Asylums: essays on the social situation of mental patients and other 
inmates Erving Goffman illustrates how an array of practices, mechanisms, and 
techniques are utilised within institutions such as asylums to ensure that inmates 
are given subjectivities and come to assume and accept these for themselves. 
Within institutions there are myriad practices designed to produce people and 
categories of people and to ensure that these identities are accepted and 
internalised by the subjects they are aimed at (Goffman: 1961).   
 
In Asylums, Goffman argues that people?s identities are products of both social 
structures and individual agency and creativity. He argues that people are able to 
adapt and shape their identities/selves through their own agency and creative 
abilities. However, the frames of reference and basis for people?s identities remain 
socially structured and determined. Thus, agency and creativity only exist under 
the structural, defining influence of society, according to Goffman. For him, this 
structural influence on individuals is felt and exercised most palpably in 
institutions. Modern society is made up of institutions, and it is these institutions 
that teach, influence, and mould people and their identities. It is through people?s 
interactions with and experiences in institutions that their frameworks for 
constructing their identities and those of their fellows are established (Goffman: 
1961). For Goffman, then, institutions play hugely significant roles in the 
production of individuals, identities, and populations.  
 
A theory of governmentality and population production should thus take into 
account the central role that institutions play in the production of both individuals 
and social categories. In South Africa, the Lindela Repatriation Centre has 
emerged as a state institution that has received a fair amount of attention from 
both the media and civil society organisations, and has gained an infamous 
 104 
reputation as a centre in which xenophobia and abuses of power occur frequently. 
An examination of the state?s treatment of illegal immigrants should thus take this 
centre into account. The practices and methods used at this centre offer valuable 
and significant insights into the exercise of state power and what this entails and 
makes possible.  
 
The Lindela Repatriation Centre is located in Krugersdorp, south of 
Johannesburg. It is situated in ?an old mining compound? (SAHRC: 1999: p.64) 
and is used to hold illegal immigrants and process them so that they can be 
repatriated/deported back to their countries of origin. It has become infamous for 
the hostile, degrading, and poor conditions that detainees are kept in. Despite this, 
the centre has operated unabated since 1996. Since then, thousands of people have 
passed through the centre on a monthly basis. For example, in the first ?five-and-
 a-half-months? of the centre?s inception, ?15 000 people?passed through? it on 
their way to deportation83. According to Human Rights Watch, since Lindela?s 
inception in August 1996 until the end of October 1997, 79,378 persons were 
detained there. ?Of these, 67,186 were repatriated, while another 11,037 were 
released.? (Human Rights Watch: 1998). It thus holds a place of prominence in 
the state?s strategy of policing and controlling immigration. Due to this, it is a 
central mechanism of governmentality and biopolitics.  
 
In Chibaro, van Onselen?s classic history of the mine compounds in then-
 Rhodesia, the author paints an elaborate picture and details how brutal, violent 
treatment and conditions were used to create docile, disciplined, obedient, and 
subservient labourers ready to obey mine-bosses and work in dangerous, 
degrading conditions to satisfy the mines? unceasing needs for production and 
extraction (of both mineral resources and labour). He describes how, during that 
period, extra-legal treatments, including beatings and killings, were used by 
authorities on the mines to legitimate domination and entrench power 
relationships between the mine authorities and the labour force. Beatings, 
excessive punishments, and the deprivation of food, free movements, and access 
                                                 
83
  Marais, H. ?Twilight zone where deportees wait?. article appearing in the Mail and Guardian, 1 
to 14 February, 2007.  
 105 
to women and families were all used as institutionalised means of creating a 
disciplined, obedient work force and conferring identities of subjugation and 
forced labourers upon mine workers. 
 
For example, van Onselen writes that 
 
?At the Gaika mine in 1930, workers who missed the first call in 
the compound at the start of the morning shift, those who fell 
asleep on the job or left work early, were all given six lashes 
with the sjambok. In 1916 at the King?s Asbestos mine, failure 
to meet the piece-work target on any three days in a month 
earned 25 lashes? (van Onselen: 1976: p.145). 
 
It is thus clear that force and violence played prominent roles in the creation and 
disciplining of the work force. This mode of discipline and population creation, 
although declared illegal when it led to deaths and was deemed excessive, still 
received acceptance and legal backing: an editorial in the Rhodesian Herald noted 
that ?To inflict reasonable corporal punishment is acceptable in fact if not in law? 
(van Onselen: 1976: p.148). Similarly, ?violence against black workers within the 
compound was legitimised by the state? and legal action was seldom if ever taken 
against compound authorities who used excessive, even fatal force; ?The state lent 
its implicit support to the mining companies by indemnifying their agents against 
the consequences of any violence used? (van Onselen: 1976: p.149). Thus, 
workers in the compounds were exposed to extra-legal treatments and acted under 
conditions not dissimilar to those described by Agamben as a state of exception. 
Again, circumstances prevailed in which the law was overlooked or ignored and a 
simple system of force was put in place. This served to create order, control, and a 
hierarchy of subjects in the compounds.  
  
In addition, the racial hierarchy and relationship of domination was maintained 
through means as surreptitious as entertainment and film screenings: 
 
 106 
?[White] male settlers?were reluctant to allow Africans to see 
films which showed white women as having normal sexual 
desires and needs. There was equal reluctance to allow blacks to 
see scenes of conflict between whites.? (van Onselen: 1976: 
p.193). 
 
This was done to ensure that the African workers, in accordance with the settlers? 
views of them, ?were treated as impressionable children and were ?protected? 
from ?undesirable? and ?dangerous? images? (ibid). In this way, settler myths, of 
both themselves and the population they sought to subdue, were circulated, 
affirmed and reproduced. In light of all this, van Onselen concludes that ?The 
setting of the compound, the presence of the armed uniformed assistants and the 
power of the white settlers all combined to produce a generally unquestioning 
acceptance among black workers of assaults? (van Onselen: 1976: p.145) and 
served to instil and maintain subjectivities and discipline within the workers. In 
this way, institutional practices served, as Goffman contends, to produce a 
population and enforce identities and different roles within a society. 
 
Lindela: a space of exception 
 
In very similar and significant ways, extra-legal practices and abuses are exercised 
at Lindela ? itself a former mining compound which is currently run by BOSASA 
Security, a company that was started ?20 years ago? and began ?guarding mines 
and hostels?, according to the company?s website, www.bosasa.com. These 
practices serve a similar purpose: the production and circulation of identities and 
the entrenchment of power relations and regimes.  
 
In Asylums, Goffman describes how in-patients in mental institutions undergo a 
series of ?abasements, degradations, humiliations, and profanations of the self? 
upon being admitted into these institutions (Goffman: 1961: p.24). These 
abasements and removals of dignity and human rights are used by the institutions 
to reconstruct the patients? identities and to establish them as subjects of the 
 107 
institutions and people who are un-well and thus non-members of the ?well?, 
privileged society from which they came. The treatment and degradation of 
mental patients is thus part of the process of constructing and redefining their 
identities, in personal as well as structural terms.  
 
Similar processes are utilised in Lindela. For example, the journalist Abbey 
Mokoe, who entered Lindela posing as an illegal immigrant, describes how, on 
arriving in Lindela, he and other detainees were told by the Chief of Security that 
he was the detainees? ?father, or brother or friend.?84 This immediately shows 
inmates that their connections with the outside world are severed and their 
identities and relations are being reconstituted and reformed. In addition, as 
mentioned earlier, whilst it is law that all inmates be allowed to make a free phone 
call, ?most detainees stated [to the SAHRC researchers] that they had no 
knowledge of the right to make one free phone call.? (SAHRC: 1999: p.42) 
 
Here again, detainees at Lindela are cut-off from the outside world and are pushed 
into a space in which the institutions? ability to define and create relationships is 
made concrete. Lindela thus fits into Goffman?s schema of ?total institutions?, 
institutions which encompass and dominate all aspects of life for those contained 
in them and that serve as ?worlds? for their inmates (Goffman: 1961: p.17). In 
addition, the denial of the right to a free phone call is the first instance of rights 
being overlooked and an exceptional, extra-legal space being created.  
 
The creation of an extra-legal space at Lindela is carried out through the common 
practice of extortion and corruption. As the SAHRC found, detainees at the centre 
frequently paid guards and Home Affairs officials sums of money to secure their 
release and that these authority figures ?extort money from detainees under a wide 
variety of circumstances. These circumstances include requiring money for 
fingerprinting, for the use of public phones, and in order to allow access of family 
and friends to the Facility.? (SAHRC: 1999: p.41) As the SAHRC points out, 
?corruption at Lindela contributed to incidents of unlawful detention? (SAHRC: 
                                                 
84
  Makoe, A, ?Special Report: Inside Lindela?, The Star, 19 July, 2002.   
 108 
2000: p.71) and serves to establish it as an institution in which the normal course 
of law does not apply and can be suspended or revoked.  
 
In addition to being informed that the security guards at Lindela constitute 
inmates? new families, detainees are body-searched and dispossessed of basic 
items such as nail clippers, pens, ?sharp instruments? and even packs of cards85. 
Here again, a process is carried out designed to strip inmates of their connections 
to the outside and ensure that they are created and reconstituted as subjects of the 
institution. The stripping away of personal possessions, reading out of rules, and 
declaration by the Chief of Security that  
 
?No one should try to escape because it is too dangerous. Our 
fences are high. We have one with barbed wire and the other is 
electric. Besides, there are patrol dogs running between the 
fences. If the dogs should find you stuck there you can't say ?I'm 
sorry.? So don't try to escape. You'll only hurt yourself,?86 
 
ensure that it is made clear to inmates that they are subjects of the institution and 
will have to abide by its rules. It also serves to teach inmates, as is done with 
inmates in mental hospitals, that detention in and subjection to the institution is in 
the inmates? interests and for their ?own good?. Here, the virtues and importance 
of obedience, discipline and internalisation of the rules are inculcated and 
affirmed for the inmates.  
 
This is the first, and most innocuous, step in the remoulding of subjects in 
Lindela. Having possessions removed is part of the process of reducing inmates to 
bare life. This process is carried through and enforced through several other 
means. Inmates in Lindela are deprived of adequate food ? according to the 
SAHRC report of 2000, ?Food at Lindela is served twice a day? and the facilities? 
?medical doctor has agreed, that ?it might not be enough to serve food only twice 
a day? (SAHRC: 2000: p.63) ? and, in the words of David Cote, ?There is no 
                                                 
85
  Makoe. (2002). 
86
  ibid. 
 109 
leisure. There's television in each of the rooms?but there's no books, newspapers, 
games to play, anything to keep you occupied during the entire day.?87 Thus, 
inmates at Lindela lead very bare, meagre lives.  
 
The centre consists of an administrative block and two housing units, one for adult 
males and a second for women and children under the age of sixteen (Human 
Rights Watch: 1998). It is built to accommodate ?2,500 persons? but is frequently 
overcrowded (ibid). According to the SAHRC, ?Sometimes up to 85 persons sleep 
in the same room,? and whilst an inventory list found by SAHRC personnel stated 
that there are 657 mattresses and 1,114 blankets at Lindela, sometimes up to 1,500 
persons are detained at the facility (SAHRC: 2000: p.60). 
Thus inmates are kept in degrading conditions and are exposed to abasements and 
erosions of their basic rights. This degradation is carried out even further through 
verbal abuse by the centre?s staffs. As Human Rights Watch found, ?Detainees 
often complained about the rude behaviour of the security guards working at the 
facility.? (Human Rights Watch: 1998) One detainee at the centre is recorded as 
stating  
?The guards are very rude. When I ask them something, they 
just walk away. And they yell at us and we are supposed to run 
to obey their orders. You know, I am not a criminal and should 
not be treated as one. I am an honest businessman.? (ibid) 
However, this sort of abuse is not confined to the guards only. According to a 
detainee interviewed by the SAHRC, ?The ladies that serve the food in [the] 
kitchen insult us using Zulu insults.? (SAHRC: 1998: p.46) Thus, the abasement 
of inmates is made complete, as not only are they insulted, abused, and belittled 
by security personnel, they are abused by staff with little to no authority too. This 
serves to complete their humiliation and entrench their powerlessness within the 
centre. They are firmly established as sub-human, degraded subjects within the 
institution.   
                                                 
87
  Interview with David Cote, conducted on 12 May, 2008. 
 110 
In addition to being insulted, humiliated, and deprived of basic material 
requirements such as adequate food and leisure activities, inmates are deprived of 
adequate health care. This report, accessed from the SAMP website gives a very 
clear description of the conditions and vulnerability at Lindela: 
 
 ?Nine illegal immigrants have died from curable diseases at 
Lindela in the past year - evidence, a human rights organisation 
says, of unhygienic conditions at the repatriation centre. 
Yesterday the Co-ordination Body of Refugee Communities 
(CBRC), slammed conditions at the centre, where, over the past 
three years 116 people have died of illnesses which human 
rights bodies and the Department of Home Affairs, which runs 
the facility, say are curable. In the past year, people have died 
from normally treatable diseases such as meningitis, pneumonia 
and diarrhoea. Ndessomin Ndosso, spokesperson for the CBRC, 
said this was unacceptable. ?The structure of the building is 
good and it looks nice, but once you go inside, the conditions 
change dramatically, especially at the sanitation area. The toilet 
facilities are not up to standard and this is why people get 
diarrhoea and pass it on to others. The conditions are bad,? he 
said. In 2004, 54 people died of natural causes at the centre. The 
following year, a further 53 died?Following the high number 
of deaths at the centre, the Minister of Home Affairs, Nosiviwe 
Mapisa-Nqakula, set up a committee in 2005 to investigate the 
problem. According to the findings of the inquiry released in 
October 2005, many of those who died could have survived if 
proper medical care had been provided to the inmates.?88 
 
                                                 
88
  Anon. ?Foreigners in Lindela die of curable disease?, The Star, 1 September, 2007. 
 111 
In addition, another report notes that in 2005 ?At least seven people?died at 
Lindela?while a further 21 detainees died at the neighbouring Leratong Hospital, 
where they were taken for treatment?89. 
 
Whilst reports of this nature have elicited ?outrage? and ?fury? from the Minister 
of Home Affairs90 and ?staff members?have been arrested in connection with the 
beating to death of an illegal Nigerian immigrant?91, Joyce Tlou from the SAHRC 
points out that, although conditions have improved in Lindela in recent times, ?It 
doesn?t mean that people are no longer dying [there]?92. Thus, it seems that the 
best that can be hoped for is a reduction, rather than eradication, of death at 
Lindela. In this way it becomes apparent that death is a common feature and is 
central to the functioning of the centre. 
 
This means that inmates held in Lindela are placed in a state in which bare life ? 
life exposed to and built on the foundations of death ? is ever-present and 
characteristic of their time there. At this point it needs to be reiterated that, 
according to Agamben, ?life exposed to death?is the originary political element 
[italics in the original]? (Agamben: 1998: p.88). Thus, the foundation of political 
life is life that has been exposed to death and that can be killed. In light of this, 
one can argue that the deadly conditions at Lindela are, in fact part of a political 
process and the creation and maintenance of bare life. The vulnerability and 
bareness of life in Lindela helps provide one of the foundations for political life in 
South Africa.  
 
Lindela, bare life and the political community 
 
The political life that death in Lindela serves to create and sustain is citizenship. It 
needs to be recalled that ?Procedural elements [of citizenship] are codified 
                                                 
89
  Sapa. ?Home affairs minister outraged by deaths at Lindela?. Mail and Guardian Online, 24 
August, 2005. 
90ibid.  
91
  Anon. ?Five staff members jailed for bloody murder at Lindela?. Mail and Guardian Online, 
Sunday, 11 May 2002.  
92
  Interview with Joyce Tlou, conducted on 11 July, 2008. 
 112 
through the state and the citizen is granted recognition in relation to the nation-
 state.? (Staeheli: 2007: p.6) It is thus a relational and political status, as citizenship 
relies on inclusion in, approval from, and is mediated through the nation-state, an 
inherently political body. It is thus a status and state of being that is embedded in 
political relationships. These are consequently entrenched and made real through 
the maintenance of an exception ? the exception depends on the norm.  
 
For Agamben, this exception is bare life, life that can be killed. In Lindela, where 
inmates are exposed regularly to death, an exception is created and maintained. 
This exception makes the rights of citizenship concrete as those held in Lindela 
are excluded, illegal persons who are not part of the political community of 
citizens. Thus, death in Lindela shows that inclusion in the community means 
protection from death, and exclusion means continual exposure to death. Here, the 
Schmittian concept of the norm depending on the exception is given clear and 
chilling significance. The prevalence of bare life in Lindela, then, confers 
identities and relationships on people: those who are outside Lindela are members 
of the free community ? the citizenry ? whilst those inside are the excluded, 
killable outsiders. These identities are essential to the construction and 
maintenance of the political community itself.  
 
The fact that Lindela is a privatised centre ? operation and control over the centre 
was outsourced to Dyambu Operations in 1999, who were subsequently replaced 
by BOSASA Security ? and is operated by civilians empowered by the state 
entrenches this division between the political community of citizens and the 
excluded community of exceptions, outsiders, or ?illegals?. Landau argues that 
staff at Lindela is creating a ?semi-privatised? criminal justice system and is 
taking policing and legality out of the state?s control, thus diminishing sovereignty 
and state power (Landau: 2005: p.345). However, it should be reiterated that 
allowing civilians to exercise excessive, extra-legal power over others, with the 
state?s blessing and acceptance it must be added, ensures that categories are made 
distinct and are maintained. Again, the division between the empowered political 
 113 
community of citizens and the powerless, excluded non-citizens or outsiders is 
enforced.   
 
Those with power at Lindela are given this by the state and are able to exercise it 
over those whom the state has designated unwanted, enemies, and ?illegals?. Here 
again, relationships between people and the state define relationships between 
people themselves. This serves to define and delimit the categories of the legal 
and illegal population, of citizens and exceptions. Empowering the legal 
population through the privatisation of Lindela is another mechanism of 
governmentality that enforces the production of both the legal and extra-legal 
population.  
 
Sharma and Gupta point out that the outsourcing of state jobs in the United States 
of America proved to be a very contentious and controversial issue, and emerged 
as a ?key issue in the 2004 presidential election?, as ?a strong backlash against the 
contracting of work by government departments to firms that lie outside of the 
territorial boundaries of the US nation-state? arose (Sarma and Gupta: 2006: p.4). 
In this case, white-collar workers in ?the North? have become threatened by 
outsourcing and have resorted to a type of economic nationalism in a bid to 
counteract outsourcing and liberalisation.  
 
This initiated a process in which state jobs became ?deserved by, and reserved for, 
?real? citizens? only (Sharma and Gupta: 2006: p.5). Here we see how state 
employment is used as a marker of identity and serves in the creation of the 
population/nation. In this case, being hired by the state is a sign of one?s inclusion 
in the national community. A similar process is at work in the privatising of 
Lindela. In contracting the running of the centre to civilians and the private sector, 
the state is establishing civilians as legitimate holders or conduits of state power. 
They are granted this power through the state and are able to use it over others. In 
this case, the legitimate, ?real? population of citizens is reinforced through 
outsourcing by the state, as is the illegitimate, excluded population. We see here 
 114 
how state power, rather than being threatened by outsourcing and privatisation, is 
actually circulated and entrenched through this process.   
 
There are further measures in place at Lindela that serve to create and maintain 
the political community. Inmates at the centre are subjected to degrading, 
humiliating treatments, which include being ?abused verbally and laughed at by 
the staff at Lindela? (SAHRC: 2000: p.65). They are also confined in unsanitary 
conditions and are only permitted to use the bathrooms at specific times, with 
permission from security guards. As inmates testified to the SAHRC, 
  
?We are not allowed to go to the loo unless given permission. 
But since they do not enquire as regularly as they should, people 
often go to the loo without asking. If such a person is caught he 
is usually assaulted by the security officials.? (SAHRC: 
1999.43) 
 
Similarly,  
 
?The security hit me in the mouth...He hit me with his knob 
Kerrie [sic], The reason seems to be that he found me in the 
toilet and asked why am I in the toilet at that time.? (ibid) 
 
Thus, a pattern of systematic humiliations, insults, violence, and abasements is 
carried out at Lindela. These abasements, as Goffman points out, are used to 
reconstruct inmates? identities. At Lindela, humiliating inmates through verbal 
abuse and regulating their use of bathroom facilities ensures that they learn to 
surrender their rights and individual subjectivities and come to accept the 
identities conferred on them by the centre and its staff. Submitting to regulation 
and harassment ensures that inmates learn that they are powerless within the 
institution and are subject to the rules as enforced by the staff. At Lindela, this 
serves to ensure that inmates are taught that they are excluded outsiders and 
exceptions to the legal society from which they have been removed and that they 
 115 
are now members of a rightless, excluded community. This circulates subject 
positions and entrenches exceptional status amongst the institutions? population.  
 
One of the most fundamental human rights is the right to dignity. According to the 
South African Constitution, ?Everyone has inherent dignity and the right to have 
their dignity respected and protected?93. In light of this, Ramjathan-Keogh states 
that everybody in South Africa has ?the right to life, the right to dignity, the right 
to equal treatment94? and the Constitution declares that even in a state of 
emergency, all of these rights ? the right to dignity, life, and equal treatment 
before the law ? must be protected and be regarded as non-derogable95; it also 
holds that all people who are arrested and detained must be held ?in conditions of 
detention that are consistent with human dignity?96. 
 
However, it is clear from our discussion that the practices adopted in Lindela and 
by the police and state officials in their attempts to regulate and police 
immigration clearly leave little room for dignity and equality before the law. It is 
thus clear that illegal immigrants ? suspected and real ? are well outside of the 
law and are thus clearly removed from the legal population in very real and 
powerful ways. This serves to entrench them as outside of the population and the 
normal course of law, and places them in an exceptional space. This entrenches 
their categorisation as outsiders and exceptions and serves as a mode of 
governmentality as categories and populations are created, enforced, and 
circulated throughout society.     
 
This rightless, excluded community is further created and entrenched through the 
use of violence. Reports of violence and intimidation of inmates at the centre are 
widespread. The SAHRC reports that guards in Lindela are quick to resort to 
                                                 
93
  RSA. (1996). Constitution of the Republic of South Africa Act. Chapter 2. Section 10, ?States 
Human dignity?. 
93
  RSA. (1996). Constitution of the Republic of South Africa Act. Chapter 2. Section 35, 
?Arrested, detained and accused persons?. 
94
  Interview with Kaajal Ramjathan-Keogh, conducted on 31 May, 2008. 
95
  RSA. (1996). Constitution of the Republic of South Africa Act. Chapter 2. Section 37, ?States of 
Emergency?. 
96
  RSA. (1996). Constitution of the Republic of South Africa Act. Chapter 2. Section 35. 
?Arrested, detained and accused persons ?. 
 116 
violence and frequently abuse detainees, both physically and verbally. According 
to the SAHRC?s 2000 investigation into Lindela  
 
?Most violence at Lindela occurs, according to the detainees, at 
night when no one is there to observe the situation. Every night 
the detainees are woken up between 2-5 times for security 
reasons. The security guards wake everyone up by shouting and 
banging on the doors. They also walk into the room and hit 
those who do not wake up fast enough. The detainees are told to 
stand in two rows with their heads between their legs. If 
someone looks up to see what is going on, the guards will, 
according to information received by interviewed detainees, use 
their belts and batons to beat that person up. It has further been 
argued that detainees may have to stand in the same position for 
half an hour while they are counted. Others explain that they 
risk being beaten up by the guards if they ask to use the 
bathroom at night.? (SAHRC: 2000: p.65) 
 
David Cote also points out that ?there's a large amount of violence being used by 
security guards against detainees.?97 Guards use ?sjamboks and pipes? to beat and 
discipline detainees ?for relatively minor offences?.98 He also notes that there is a 
common practice in which ?People will be shoved into a room, teargas will be 
shot into it and the door will be closed. And it's meant to subdue people if there's a 
perception that they may start getting out of control.?99 
 
Human Rights Watch, too have documented abuse at the centre. As one inmate 
explained:  
 
?The security officer at Lindela called us and started assaulting 
us with baton sticks all over the body. They then took us to the 
                                                 
97
  Interview with David Cote, conducted on 12 May, 2008. 
98
  ibid. 
99
  ibid. 
 117 
office and let the dogs free to bite us. They continued to hit us 
and kicked us with boots. They then thereafter took us to room 
eight where they hit other inmates who were there. They again 
took us to room one where they let the inmates hit us. One of the 
security officers demanded that I give him my car keys as I had 
told him the place where I parked it. I did not give him the car 
keys.? (Human Rights Watch: 1998) 
 
Another inmate interviewed by Human Rights Watch claimed that  
 
?I was locked into a room by myself, room twenty-three. 
Yesterday, three men entered the room. I was handcuffed and 
my leg was tied to a bed. One man started beating me. He 
punched me in the face and kicked me to the bladder. Later, I 
was urinating blood. My jaw is very swollen. After beating me 
up, they left me handcuffed. I was released by a night shift 
worker. They beat me from 10 a.m. and they beat me until 5 
p.m., changing the people who beat me. That is when they left 
me. The next shift released me at 8 or 9 p.m.? (ibid) 
 
Yet another reported that 
 
?Yesterday, guys were beaten severely. One guy was thirteen 
years old. He was beaten severely with a baton stick. And 
kickings. Very bad. These guys from Maputo were complaining 
that they wanted to go home. So for this, they were beaten 
severely? (ibid) 
 
Foucault has argued that ?the basic biological features of the human species [have 
become] the object of a political strategy, of a general strategy of power.? 
(Foucault: 2007: p.1). The violence perpetrated against inmates at Lindela as well 
as the general neglect at the centre can be seen to confirm this, as, in these cases, 
 118 
the body and human biology have been used as primary means through which 
power is circulated and subjectivities and categories of people are produced. In 
Lindela, the body is the central focus and medium of power.  
 
Thus, Lindela is an institution in which violence predominates and serves as the 
normal mode of operation. This shows clearly that detainees in the institution are 
kept in an exceptional space in which force predominates and law is absent. There 
are few mechanisms for oversight at the centre and inmates are unable, for the 
most part, to lay complaints against staff in cases of abuse and violations of their 
rights. It is thus a centre that exists and functions outside and in the absence of 
law.  
 
This serves as a very clear and real method of governmentality. Keeping with 
Goffman?s theory of institutions and the practices therein serving to impart 
subjectivities on people, it becomes apparent that keeping detainees at Lindela in 
this exceptional, lawless state serves to construct them as outside of normal 
society and as unwanted outsiders. The fact that deprivation, violence, and death 
form the basis of inmates? experiences of the centre demonstrates that these 
inmates are helpless, vulnerable, and excluded from society and the protections 
this inclusion is meant to provide. For instance, the South African constitution 
declares that ?Everyone is equal before the law and has the right to equal 
protection and benefit of the law.?100 It also proclaims that everyone in South 
Africa has the right ?to be free from all forms of violence from either public or 
private sources; not to be tortured in any way; and not to be treated or punished in 
a cruel, inhuman or degrading way?101.  
 
The treatment of inmates at Lindela is clearly in violation of these Constitutional 
rights and thus establishes Lindela as a space in which the Constitution and 
country?s laws do not apply. In addition, this serves to establish inmates held in 
Lindela as persons to whom the law and Constitution do not apply. They are 
                                                 
100
  RSA (1996). Constitution of the Republic of South Africa Act. Chapter 2. Section 9. ?Equality?.  
101
  RSA (1996). Constitution of the Republic of South Africa Act. Chapter 2. Section 12, ?Freedom 
and Security of the Person?. 
 119 
consequently excluded from South African society and are conferred very clearly 
and firmly with the status of outsiders and exceptions. In this way, the practices 
used at the centre serve very clearly to produce subjectivities and populations, and 
thus serve as a mode of governmentality and circulation of state power.   
 
Thus, Lindela serves as a clear example of institutional power and practices being 
used to create subjects and populations. The maintenance of Lindela as an 
exceptional space in which rights do not apply or have any significance ensures 
that illegal migrants caught in South Africa and detained there are taught that they 
are excluded and not members of the legal population. This serves to entrench and 
circulate categories of subjects and the state?s power to confer these. Just as police 
and official harassment on the streets serves to create an illegal, excluded 
population distinct from the legal community of citizens, practices at Lindela give 
substance and significance to the status of ?illegal?, and construct it as one that 
excludes people from the community and human rights.  
 
Delimiting the community 
 
According to Ivor Chipkin, the post-Apartheid nation-building project has been 
founded partly on human rights and has based efforts to create an inclusive 
national discourse and community on human rights and the extensions of these to 
all. A consequence of this, according to Chipkin, has been to create South 
Africans not as a distinct people but rather as a ?world people? (Chipkin: 2007: 
p.185). This is because, for Chipkin, human rights do not serve as a clear limit 
point or demarcation of belonging: ?Invoked to define a specifity of a people, they 
[human rights] must necessarily appeal to all people? (Chipkin: 2007: p.186). This 
is problematic for Chipkin, as it makes a distinct South African identity elusive: 
?South Africans are merely instances of humanity, indistinguishable from anyone 
else? (Chipkin: 2007: p.185). However, despite a rhetoric and nation-building 
process based on human rights, South African identity is not as elusive as Chipkin 
believes.  
 
 120 
This is because just as human rights and humanity form the basis of inclusion in 
South Africa, they also form the basis of exclusion and delimitations. We see that 
in the case of illegal immigrants, a category of people, despite being present and 
residing in South Africa ? the qualities the Freedom Charter and the Constitution 
deem sufficient for inclusion in the citizenry ?, are excluded from the community 
and are not granted the human rights that form the basis of national inclusion. 
This serves a two-fold purpose of both providing a limit point for the national 
character and population and also giving substance to this inclusion. 
 
If to be a South African is to be imbued with human rights and, by virtue of this, 
be human, then illegal immigrants form the excluded exception to this, as they are 
denied human rights and are, subsequently, reduced to something less than 
human, having only bare or killable life as their foundations for existence. As 
Landau points out, non-nationals in South Africa are denied legal identities, 
?making them non-peoples in the state?s eyes? (Landau: 2005: p.341). Similarly, 
but more damningly, an inmate held in Lindela complained to Human Rights 
Watch: ?The problem is that we are not treated like human beings.? (Human 
Rights Watch: 1998) It is in this way that an elusive national identity that 
subscribes to and invokes human rights is given a limit. It is a limit that is based 
firmly in and on the state of exception and on the production of excluded as well 
as included categories of people. 
 
This aspect of power and the malleability of the law and human rights is lacking 
in Chipkin?s search for the South African national character. His account fails to 
examine the ways in which this national character or community is formed 
through an exception or exclusion of other categories of people. At the same time, 
he does not account for state power and ability to mould or shape populations.  
 
According to Chipkin, the national community of citizens is formed through a 
?series of processes (rituals, ceremonies) through which the individual comes to 
see that he or she really is like those around him or her? and that all are of equal 
worth and status within the community (Chipkin: 2007: p.213). He cites queuing 
 121 
to vote in an election as an example of one of these rituals, as, in the election 
queue, ?whites, blacks, coloureds and Indians became South Africans.? (ibid) And 
whilst this account is heart-warming and hopefully does hold some truth, an 
important aspect is missing from it.  
 
What is of significance in the example used by Chipkin, aside from the warm 
feelings it invokes, is the manner in which the body is utilised in the process. In 
the account of police violence against immigrants and abuses carried out at the 
Lindela centre, we have seen how the body is placed at the forefront of political 
and security measures and is used as a medium through which subjects and 
communities are produced. This analysis can be extended to the example of 
standing in queues to vote. 
 
In the voting queue it is true that people are able to exercise their citizenship 
rights and are consequently able to affirm their belonging in the political 
community. At the same time, however, obedience, patience, and docility are at 
the heart of the process, as people gather in queues and exercise their citizenship 
through being obedient and orderly. This is an obedience that functional elections 
depend upon, and that can only be attained through cooperative bodies. In this 
way, a biopolitical function can be seen to be at the heart of the election, as the 
political community of citizens is moulded and entrenched through people?s 
physical bodies and cooperation with the process.  
 
Foucault has argued that the production of docile bodies is at the centre of state 
power and governmentality and that basic biological features are the objects of a 
political strategy of power (Foucault: 2007: p.1). The voting queue, and 
consequently the affirmation of the national community, depends on this docility 
and political strategy which is exercised through people?s bodies, and can thus be 
seen to fall within the state?s mechanisms of biopolitics and power. Chipkin does 
not account for this, and thus fails to account for the role state power plays within 
this process of nation formation.    
   
 122 
Alternative subjectivities: a challenge to state power       
 
Thus it can be seen that the state of exception and creation of extra-legal spaces 
and methods used to deal with and police illegal immigration serves state 
governmentality and methods of population production and regulation in South 
Africa. This helps ensure that state power to define, categorise, regulate, and 
produce populations and subjects is entrenched and circulated in society; the state 
of exception is a powerful mechanism in this process. However, it needs to be 
remembered that state power is never complete nor total in any society. Even 
within an enclosed institution such as Lindela, people have the capacity to defy or 
evade power. For example, Makoe points out that as soon as detainees settled in at 
Lindela, ?house rules were broken one after the other?102. This indicates that 
power and the circulation and enforcement of subjects is never complete or 
absolute.  
 
Another example of people?s ability to challenge or circumvent state power is the 
fact that, as Dr. Zonke Majodina, the Deputy Chairperson of the SAHRC pointed 
out, (in a presentation made at an HSRC seminar held on 23 Spetember, 2008) 
?people cross the border with impunity?. This shows that borders and immigration 
controls are never complete nor successful in regulating people?s movements. 
Similarly, Kaajal Ramjathan-Keogh points out that South Africa?s approach to 
dealing with and policing immigration, whilst extremely aggressive ?Doesn?t take 
into account the fact that people will continue to arrive in the country and go back 
and forth between the borders, irrespective of whether you permit them to do so or 
if you don?t,? and consequently ?does not actually work in deterring people? or 
preventing illegal immigration103. 
 
Here again we see that state power to control borders and the movements of 
people, and consequently to entrench power and produce populations obedient to 
and in line with state interests and ideals, is not absolute. Spaces always remain in 
which resistance and rejection of power and alternative subjectivities and forms of 
                                                 
102
  Makoe. (2002). 
103
  Interview with Kaajal Ramjathan-Keogh, conducted on 31 March, 2008. 
 123 
power exist. This is an issue that is often lost in the work of Agamben, and 
consequently mitigates against an uncritical or complete acceptance of his work 
and its use as a means of understanding state power and processes of nation-
 building, including the creation of citizenship. 
 
The very fact that illegal immigration exists illustrates that state power cannot be 
complete and exert total control over populations and people. Because it is illegal 
it is against and in violation of the state and its laws. This does weaken the power 
and control of the state. At the same time, however, the very fact that people can 
be defined as illegal and treated in manners that exclude them from the legal 
population also entrenches and strengthens state power, as it illustrates the ability 
of states to produce populations and categories of people. We see, then, that state 
power operates in a manner in which it is constantly challenged and constantly 
seeks to reinforce itself. This drive to reinforce itself opens up spaces for extra-
 legal practices as, as Agamben notes, the state of exception was traditionally 
invoked and utilised in times of threat and social disturbance.  
 
Conclusion 
 
As illegal immigration and movements of people threaten state power and serve to 
reduce it, it follows that extra-legal attempts will be made to reassert and regain 
control. Again, a situation in which force exists with very little law or relevance 
behind it is introduced and maintained. This serves to impose realities on 
populations in the face of alternative, challenging ones and attempts to maintain 
state control in times of threat. Here we see that the state of exception is a 
valuable and edifying contribution to understanding the significance and drive 
behind immigration control and the different types of populations this gives rise 
to. The state of exception is a means of controlling populations and resisting or 
counter-acting threats to state power and is thus highly relevant in an 
understanding of immigration control and the population production this serves. 
This is clearly apparent in the ways in which immigration is policed on South 
Africa?s streets and within its institutions.  
 124 
Chapter Four: 
Understanding the xenophobic attacks: citizenship, 
the politics of belonging and the state of exception 
 
The previous two chapters have examined how the South African state has placed 
immigrants, particularly those classified as ?illegal?, within a state of exception. 
This has been done through the legal framework and laws governing immigration 
as well as through on-the-ground policing and practices within institutions. The 
result of this has been to construct immigrants firmly as outsiders or exceptions to 
those who are included in the South African community; in this way, the 
exclusion of one category of people has served to lay the foundation and provide 
substance for an alternative category ?  that of citizens. This bifurcation has thus 
played an essential role in the governing and controlling of the South African 
political community. Whilst this mode of governmentality has sprung from the 
state, it must be emphasised that it is not the sole preserve of the state.  
 
Previously it has been argued that state power is circulatory and encompasses the 
ability to produce subjectivities that are lived and acted out by the general 
population, not just state actors and representatives, as in the cases of citizen 
vigilantes and private security companies running repatriation centres. State 
power ? the ability to define, categorise, and produce people and populations and 
to order realities ?  is thus not only effective within a top-down, legalistic 
framework, but finds its most powerful expression in the interactions between 
subjects, be they individuals or whole communities. It must be remembered that 
governmentality is a process or practice of governance that includes institutions, 
procedures, tactics, and knowledge (Foucault: 2007: p.108). It is thus more than a 
way of governing and ruling; it is a mode of discourse production and 
dissemination that focuses on and makes possible population control and creation. 
As such, governmentality and the forms of population this gives rise to cannot be 
studied through the actions of the state alone; it also finds targets and subjects 
 125 
within the general population. This is made evident and disturbingly clear through 
the violent attacks on foreigners that swept through South Africa in May 2008. 
These attacks provide clear insights into the effects of governmentality, 
population production, and the state of exception at work in South Africa today, 
and illustrate the disturbing reality of the politics of belonging this has given rise 
to.   
 
On 11 May, 2008, after a series of community meetings in Alexandra Township, a 
group of local residents gathered together and embarked on a rampage through the 
township, discovering and then violently, and in some cases fatally, assaulting 
foreigners and South Africans accused of being foreigners residing in Alexandra. 
This violence lasted for four days before police were able to gain control and 
prevent further attacks. However, whilst the violence in Alexandra subsided, 
attacks of a similar nature soon erupted in other areas of Gauteng, and eventually 
spread to other provinces, including the Northern and Western Cape and KwaZulu 
Natal. The violent attacks lasted the whole of May, and led to the deaths of over 
fifty people and the displacement of thousands, as people fled their attackers and 
sought refuge, first in police stations and later in displaced persons camps set up 
by the government.  
 
Deadly precedents  
 
The May attacks sparked widespread condemnation and inquiries from South 
African society, its non-governmental and civil society organisations, the political 
and academic community, as well as the general public. For most, the attacks 
were unexpected acts of violence and riots. However, it is clear that these attacks 
were not isolated incidents nor were they without precedent. For example, 
?violence perpetrated against foreign migrants, and particularly Africans, was 
documented as early as 1994? (HSRC: 2008: p.19). An article appearing in the 
Mail and Guardian from February 1995 notes that the ANC called a meeting in 
Alexandra ?between residents and the amamakwerekwere?to discuss a recent 
 126 
wave of violent attacks on foreigners who have flocked to the township?104. The 
article also describes how  
 
?villages in the Eastern Transvaal districts that straddle the 
Mozambican border?have joined the local commando, once the 
preserve of conservative white farmers so that they can receive 
military training and weapons [in order to] hunt down and 
repatriate illegal immigrants.?105 
  
In addition, attacks against foreigners have occurred ?in Cape Town informal 
settlements in Du Noon and Doornbach (2001), and Joe Slovo Park (2002)? 
(HSRC: 2008: p.19), and even in February 2008, just three months before the 
wave of riots and attacks, ?about 300 foreigners were forced to move out from 
their respective homes after residents of the Itireleng informal settlement next to 
Laudium turned against them?106.  
 
Thus, attacks against foreigners in South Africa are not a new phenomenon, and 
has been occurring for many years and with increased frequency and intensity in 
the post-Apartheid period. The previous chapters have shown that the South 
African state and its representatives have entrenched immigrants in South Africa 
in a vulnerable, exclusive, exceptional space; Due to this, they exist in an 
extremely vulnerable condition in South Africa, and it should come as little 
surprise that they have been the focus of so many sustained and recurring acts of 
violence. However, it is not enough to understand the violence perpetrated against 
foreigners simply as violence for violence?s sake. In the wake of the May 2008 
attacks, explanations of the attacks abounded. 
 
 
 
                                                 
104
  Koch, E. and Chiledi, A. ?An evil story of fascism in our backyards?. article appearing in the 
Weekly Mail and Guardian, 3 to 9 February, 1995. 
105
  ibid. 
106
  Anon. ?Home affairs to deal with attacks on foreigners?. article appearing in BuaNews.  20 
March, 2008. 
 127 
Common explanations 
 
The majority of the explanations put forward have focused on the socio-economic 
conditions that prevail in South Africa, and have consequently come to understand 
the attacks as manifestations of people?s growing frustration and disappointment 
with on-going poverty, deprivation, and poor service delivery. As Loren Landau 
states, the reason for the attacks ?clearly is about how services are delivered.107? 
In addition Adam Habib, the current Deputy Vice-Chancellor (Research) of the 
University of Johannesburg, blames the attacks on ?relative deprivation, the social 
foundation on which revolts are constructed?, and argues that inequality and 
frustration with continuing poverty has made people in squatter camps and 
informal settlements angry, leading them to seek out scapegoats and targets for 
their anger108. 
 
The Human Sciences Research Council?s report into the underlying causes of the 
violence also underlines how people?s deprivations, frustrations, and sense of 
siege or being under threat prompted the violence: 
 
?Impoverished people feel literally ?besieged' by a range of 
pressing socio-economic challenges. Rising food and fuel prices, 
the onset of winter, endemic unemployment and the lack of 
formal housing have all contributed to the increasing ?othering? 
of large numbers of working men and women coming from 
other parts of the continent. In some instances this has included 
internal migrants from other parts of South Africa.? (HSRC: 
2008: p.45) 
 
Thus, the explanations for the attacks that focus on the socio-economic 
environment and base themselves on theories of frustration and aggression have 
taken hold and have been promulgated by several prominent scholars and opinion-
 makers. Focus on socio-economic conditions and deprivation have led Ebrahim 
                                                 
107
  Interview with Loren Landau, conducted on 19 May, 2008. 
108
  Habib, A, ?Why? Why? Why??. article appearing in The Star, Tuesday, 17 June, 2008. 
 128 
Khalil Hassen (a political analyst) and Stephen Gelb (the director of the EDGE 
Institute) to conclude that ?Yesterday?s service delivery protests are today?s 
xenophobic attacks?109. This is obviously a popular explanation and one that has 
received much currency. And whilst there is an underlying relationship between 
the violence and people?s on-going deprivation and frustration with the state and 
poverty, this explanation fails to account for much, and sheds little light on the 
subjects of the attacks and the specific form they took. 
 
An alternative view: the politics of belonging and the state of exception 
 
The photojournalist, James Oatway, speaking at a symposium held by the HSRC 
on 23 September, 2008, remarked that the attacks/riots differed from service 
delivery protests because, during the riots, ?Everyone was armed to the teeth; 
once they?ve got the scent of blood, nothing will stop them until their blood-lust is 
satisfied.? Thus, we can see that the focus of the attacks was very different from 
that of service delivery protests. The latter are about people expressing their anger 
and frustration with the state, its economic policies, performance, and failures to 
improve their socio-economic conditions. They are thus protests designed to 
express anger and disappointment and their focus is the state. In the riots, 
however, the focus was much more simple and sinister, as people gathered not to 
protest or make political statements, but simply to kill, to satisfy a ?blood-lust?. 
 
There is thus a very important difference between the purpose of the attacks and 
the average service delivery protest, as well as between the focus of the two 
actions. Service delivery protests focus on the state; violent attacks against 
foreigners focus on identities and subjects which in fact are mediated by the state. 
The one is thus an attack or protest against the state, the other can be seen as an 
affirmation of the state and its role in mediating the politics of belonging.  
 
Attacks that base themselves on nationality and countries of origin are products of 
state-centred discourse and governmentality. Rather than subsuming the attacks of 
                                                 
109
  Hassen, E.K. and Gelb, S. ?Today?s protests are tomorrow?s attacks?. article appearing in The 
Star. Tuesday, 17 June, 2008.   
 129 
May 2008 under the blanket of service delivery protests, they need to be explored 
within the context in which they occurred: the politics of belonging and existence 
in the nation-state. As the pervious two chapters have shown, this is a politics that 
bases itself, in many ways, on the production of categories of population, of 
insiders who belong within a society and outsiders who, whilst remaining crucial 
to a population as they give form and substance to inclusion, remain firmly 
outside of it. Through the government?s immigration policies, policing methods, 
and institutional practices, illegal immigrants have been constructed as these 
outsiders. It is possible, and perhaps necessary, then, to view the May 2008 
attacks as extensions and products of this mode of politics and belonging.  
 
We have seen in the previous chapters that the state of exception plays a 
prominent role in this politics and mode of governmentality, as it is this state of 
exception which allows the community of insiders and outsiders to take shape. It 
is a feature of contemporary South African law and society which ensures the 
vulnerability and exclusion of one type of population in order to give shape to and 
empower another. Thus, in interactions and clashes between communities of 
insiders and outsiders the state of exception is at work and comes to shape the 
relationships and positions of different communities. These stem from the state 
and its utilisation of the state of exception. Thus, the state of exception and the 
state need to be given a place in our understandings of the politics of belonging.   
  
In addition to being framed by governmentality, the politics of belonging within 
the nation-state rests on biopolitics ? a form of governmentality, discipline, and 
regulation that focuses specifically on the body and human biology. According to 
Foucault, biopolitics and biopower refers to ?the way in which the specific 
problem of life and population were raised within a technology of government? 
(Foucault: 2007: p.370). It is thus a feature of governmentality, of the 
mechanisms, techniques, tactics, and institutions which modern governments and 
societies use to produce populations and regulate lives within the nation-state, and 
is a feature of governmentality that is focused specifically on the body.   
  
 130 
In Homo Sacer, Agamben illustrates how the Nazis came closest to mastering 
modern biopolitics in its most monstrous and powerful form. This ability to utilise 
the modern state?s control over the mechanisms of biopolitics allowed the Nazi 
regime to decide on what was disturbingly described as ?life that does not deserve 
to live?. (Agamben: 1998) This understanding of what constitutes life that 
deserves to live was used to eliminate Jews and Gypsies, the populations that had 
no place or value in the Nazi schema or worldview, as well as the mentally and 
physically handicapped, who threatened the purity of the German race. This mass-
 elimination was accomplished through the Nazi?s mastery of the mechanisms of 
biopolitics, which extended from the railway systems used to transport victims, to 
the camps used to house and process those consigned to either productive slavery 
or extermination, all the way down to the legal mechanisms and definitions used 
to separate citizens of the Reich from those undeserving of life. Whilst the Nazi 
example represents the most horrifying and disturbing example of the power and 
application of biopolitics, it also represents this modern phenomenon?s most clear 
application and its features, features which remain present to this very day and 
which once again reared their ugly heads in the May xenophobic violence.  
 
It is incorrect to compare the recent violence with the Nazi?s state-led attempts at 
genocide. However, telling similarities, especially in the objects of both the Nazi?s 
and current violence and the mechanisms through which these objects are 
uncovered and defined, can be exposed. What was at issue with the Nazis and 
what remains at issue in contemporary times is the control over biopolitics ? and 
by extension existence ? exerted by sovereign powers over populations. One of 
the key methods in which this control over populations is exerted, and thus of 
modern biopolitics, is through the bureaucratic processes and workings of the 
nation-state. 
 
The Nazis mastered this process as the means to make people and populations 
?killable? or undeserving of life. As Agamben points out, German Jews could only 
be killed by the Nazi?s once each one had formerly had his or her citizenship fully 
removed (Agamben: 2005). In these cases, the Nazis could only kill people and 
 131 
populations who were legally not German. Thus, the distinction between life and 
death became determined on a formal legal basis. And although this makes itself 
felt in less extreme ways, citizenship today continues to provide a formal and 
legal distinction between people.  
 
In his comment piece entitled ?Nothing justifies this savagery?, which appeared in 
The Star newspaper accompanied by a photograph of a Mozambican man who 
had been set alight by rampaging South Africans, Sonwabile Mancotywa (the 
Chief Executive Officer of the South African National Heritage Council) writes 
that citizenship in modern nation-states is the determinant of one?s humanity, of 
one?s ability to claim rights and opportunities within nation-states. He writes that 
?the location of birth trumps one?s humanity. The very fact you are a human being 
in need is less important [than the fact that one is a foreign national]?110. In other 
words, a situation has been created in which questions of origin and status (as 
determined by the sovereign nation-state) supersede and ultimately determine a 
person?s existence in the contemporary world. Thus, it can be seen that the nation-
 state, with all its various mechanisms, institutions, and powers, has emerged as the 
determinant of existence and humanity in contemporary times. Consequently, 
existence today is framed in the particular type of sovereignty and power 
contained within nation-states.  
 
This is a power that, in addition to containing the ability to define and create 
populations and subjects, rests on the ability to draw distinctions between life and 
death, between life that ?deserves to live? and life that can be killed. The nature of 
the May 2008 riots, the manners in which they were carried out and the objects of 
the violence all fit into this scheme and can consequently be seen as 
manifestations of governmentality and the form of biopolitics ? a contestation 
over life and death ? that this gives rise to in contemporary times. 
 
This contest over life and death, over the politics of belonging, has become 
framed by the state of exception. This is used, as argued previously, to demarcate 
                                                 
110
  Mancotwya, S. ?Nothing justifies this savagery?. article appearing in The Star. Monday, 2 June, 
2008. 
 132 
communities, and has come to ensure and enforce the vulnerability of one type of 
community at the hands of another. In creating a community of insiders/citizens 
who are empowered and protected by the law as well as a community of 
outsiders/foreigners who are vulnerable before the law and are exempt from its 
protections, the state of exception is used as a basis for demarcation between 
citizens and non-citizens, and ultimately between those who deserve to belong and 
those who do not. The May riots can be seen as a way of enforcing this 
distinction, as well as a product of this state of exception and state-produced 
vulnerability.  
 
Re-enforcing barriers  
 
During the May riots, crowd violence and anger was directed at foreigners, who 
were said to be responsible for crime, on-going unemployment, and other social 
problems in South Africa, including a reduction in South African males? 
masculinity and power over South African women. Accusations that foreigners 
were stealing jobs and social services from locals and were even stealing their 
women and exposing South African men as lazy, un-industrious, and unable to 
provide for their families sparked the fire of citizens? rage.  What this rage showed 
was that citizens/insiders resent the competition, encroachment and even presence 
of foreigners within their communities. Foreigners represent unwelcome 
outsiders, and crossing the barriers of exclusion/inclusion represents an 
unforgivable crime, one that is deserving of death, the removal of one?s right to 
life. 
 
What is at issue then, and what the violence needs to be understood as 
symptomatic and representative of, is the contest and politics of 
inclusion/exclusion. This is a politics that bases itself on and enforces distinctions 
between who is permitted to participate in and be a member of a community and 
who is not. As the piece by Mancontwya points out, this is a contest that has been 
framed by the nation-state, and that plays itself out in a contest between citizens 
and non-citizens, members and non-members.  
 133 
 
All of the ?crimes? and offences committed by foreigners can be traced back to 
them overstepping or infringing the citizen/outsider divide, and the consequent 
attacks can be seen as an attempt to reaffirm this divide. As Councillor Sizukela 
Nkosi (a senior local ANC Councillor in Alexandra) pointed out, due to the 
perceptions (which are facts for some) that foreigners can ?come into 
communities and do as they wish?, and can move about freely in South Africa and 
even work and usurp locals? privileges,   ?There is no difference between citizens 
and non-citizens, and that is why people are frustrated.?111 
 
So, it is apparent that levels of frustration are high in South African communities, 
especially those that are yet to see marked improvements and benefits in the post-
 Apartheid period. However, this frustration is not merely a manifestation of 
frustration with socio-economic conditions; it has emerged as a frustration with 
people?s positions and statuses in South Africa, and the blurring of lines of 
distinction. It can thus be argued that the May attacks represent attempts to re-
 draw or re-enforce the lines of demarcation in South Africa. This is apparent in 
the ways in which the attacks, in some instances, came to take on ethnic tones too.  
 
During the attacks ethnicity became a symbol of belonging. Anecdotally, it 
emerged that groups of people harassed others and asked them to provide Zulu 
translations for certain words or body parts; failure to do so signified one?s 
otherness or foreignness, and consequently one?s lack of a right to belong in South 
Africa ? i.e. one?s unsuitability for life. In mobilising ethnicity in this way, rioters 
were again re-enforcing the barriers of belonging. Those who are like ?us?, who 
have the ?right? citizenship and ethnic markings are fit for and deserving of 
inclusion; those who lack this are not and consequently do not deserve a presence 
or existence in South Africa. Here we see again how violence was mobilised in 
the name of community-building and demarcation.  
 
                                                 
111
  Interview with Councillor Sizukela Nkosi, conducted on 6 August 2008.  
 134 
The explanation that the attacks were provoked by people?s on-going socio-
 economic suffering and the lack of improvements in poor communities appears to 
be supported by one of the issues that sparked the violence in Alexandra, the fact 
that foreigners were occupying houses built as part of the government?s 
Reconstruction and Development Programme (RDP). This is perceived to be a 
great offence or crime by foreigners as the RDP houses were one of the few 
visible and concrete attempts made by the post-Apartheid government to improve 
the living conditions of South Africa?s urban poor. 
 
The houses are, consequently, symbols of the new democratic dispensation and 
the socio-economic improvement citizens, especially Black, formerly oppressed 
citizens, can expect. However, the Institute for Democracy in South Africa (Idasa) 
point out in their report on the riots, ?it is hard to conclude that a relatively small 
number of foreigners receiving RDP houses?has a significant effect on the 
number of South Africans denied benefits.? (Idasa: 2008: p.8) In addition, the 
HSRC report notes that foreigners who were occupying RDP houses had done so 
through either renting or purchasing them from South Africans. As an informant 
pointed out, people in Alexandra have been selling RDP houses in order to gain 
money to use as down-payments on ?a house in the suburbs? (HSRC: 2008: p.38). 
At the same time, The Star newspaper reports that ?South Africans allocated RDP 
houses in Alexandra?are illegally renting them out to foreigners or other South 
Africans.?112 
 
So, it is apparent that South Africans were, in fact, benefiting from foreigners?   
occupation of these houses. However, this was still a source of anger for locals, 
who went door to door demanding to see people?s identification books113. As 
James Oatway recounts, people were ?attacked just for stopping the mob coming 
into their houses?. The violence, then, cannot be seen as a consequence of 
foreigners depriving locals of houses, but as a revolt against their mere presence 
                                                 
112
  Radler, M. ?RDP houses at core of the recent attacks?. article appearing in The Star, Monday, 9  
June, 2008.  
113
  Khupiso, V. and Rank, F. ?Terror on the home front?. article appearing in The Sunday Times, 18 
May, 2008. 
 135 
in local communities. The assumption that access to RDP houses was at the 
forefront of locals? anger is also dispelled by the fact that, according to Constable 
Neria Malefetse, the current Alexandra Police Station Communication Officer, 
?Locals burnt down shacks in which foreigners were living and built their own 
shacks? on those sites114. Again, we see that violence was not overtly linked to 
socio-economic conditions, but was directed at and fuelled by foreigners? 
presence in communities. Since the attacks, whilst socio-economic conditions in 
Alexandra remain unchanged, ?It is peaceful since the foreigners are gone.?115 
 
It can thus be deduced that socio-economic, materialist explanations of the riots 
are overly simplistic and reductionist and do not get to the heart of the issues 
involved. What needs to be added to our understanding of these attacks is the 
issue of the politics of belonging and contest over existence in the contemporary 
nation-state. This is a contest that is, in many ways, framed by governmentality, 
biopolitics, and the state of exception. Returning to Mancotywa?s assertion that in 
modernity one?s location of birth and legal status trumps one?s humanity, it 
becomes apparent that the nation-state and modes of governmentality at work 
within it contain the ability to classify, define, and ultimately determine people?s 
existence and claims to life.  
 
This is because governmentality, biopolitics, and the state of exception allow the 
state to order reality and produce subjects who live out this reality. It needs to be 
reiterated that governmentality does not refer to the state?s ability to order society 
and control it from the top down. Governmentality refers to the way in which state 
power is infused and circulated throughout society, through the very populations 
and people it has as its objects and subjects. Thus, the categorisation and contest 
over belonging within the nation-state is not relevant in terms of a state-centred 
process, but rather makes itself felt within the relationships and subjectivities of 
the population. During the May riots, populations and communities were acting in 
terms of the subject positions produced through the state of exception and state 
power.   
                                                 
114
  Interview with Constable Neria Malefetse, on 13 August, 2008. 
115
  ibid. 
 136 
 
The law, citizenship and bare life  
 
The law is one of the central features of these mechanisms of governmentality. 
According to Agamben, ?Law that becomes indistinguishable from life in a real 
state of exception is confronted by life that, in a symmetrical but inverse gesture, 
is entirely transformed into law.? (Agamben: 1998: p.55) We have already 
examined the ways in which illegal immigrants have been constructed and placed 
within a state of exception; in the wake of the May riots, it now becomes clear 
what the effects of this have been.  
 
In a society in which a state of exception serves as one of the fundamental modes 
or paradigms of governance, citizenship ? which connotes the difference between 
those within the community and those within the state of exception ? becomes the 
arbiter of one?s ?humanity? and thus determines the quality of rights and existence 
one can expect and, ultimately, when taken to its most extreme end, life and death. 
Attacks by locals on foreigners who transgress the citizen/outsider line, and whose 
biggest crime is to have the wrong documentation, status, and country of birth 
clearly represent law as indistinguishable from life, and represent the danger when 
?the location of birth trumps one?s humanity.?   
 
The killabilty of immigrants stems directly from the state and law. It is a product 
of their being placed within a state of exception, and consequently outside of the 
realms of the community. In resorting to illegal measures to deal with foreigners, 
local communities have reproduced this state of exception and acted according to 
the politics and form of governmentality it has been part of. The fact that locals 
feel that it is within their rights to resort to the most extreme illegal measures in 
order to deal with the ?threats? posed by foreigners is indicative of the state of 
exception foreigners find themselves in. Their status as ?foreigners?, ?illegal?, or 
?non-citizens? stems from the state and its laws. They are thus products of the law 
itself. At the same time, their vulnerability, marginality, and killabilty places them 
outside of the law and creates the impression that extra-legal or illegal measures 
 137 
are justified or acceptable. They are thus simultaneously created by and placed 
outside of the law.     
 
However, citizenship is not merely a distinction stemming from and at work 
within law; it has emerged as a fundamental mechanism of contemporary 
biopolitics ? the contest over the body and life and death in modern times and the 
production and reproduction of the population. This contest played itself out 
during the May riots, and it is no accident that issues of belonging, inclusion, and 
rights were so central in these attacks. With the establishment of the state of 
exception, immigrants or foreigners have become targets and represent life that is 
killable or that does not deserve to live; this is what Agamben classifies as ?bare 
life?.  
 
For Agamben, bare life is life that can be killed without being sacrificed; it is, 
then, life that has no meaning outside of the fact that it can be killed. This 
?killabilty? or life that has meaning only in the fact that it can be killed is, 
however, highly significant in a broader social context. For Agamben, bare life 
serves as the distinguishing feature between life that can be included in the 
community and that which is outside it ? the exception. 
 
As he points out, the German nation was constructed through the production of 
bare life and its eradication. In seeking to wipe out peoples who did not deserve to 
live, the Nazi regime was clearly establishing what it meant to be included in the 
German nation ? it meant being allowed to live or being worthy of life. It is 
possible to see a similar, but far from equivalent, mode of biopolitics at play in the 
May 2008 riots.  
 
As Donald Horowitz points out, in a riot, ?the aggressor is curiously dependant on 
the victim. The source of the target choice is located in their relationship and in 
the characteristics believed to be displayed by the aggressors.? (Horowitz: 2001: 
p.128). In the May riots, it became apparent that the aggressors based their attacks 
on a relationship or characteristic of belonging. The targets of the attacks were 
 138 
those who did not posses the characteristics of locals ? they spoke with foreign 
accents, were dark in skin colour and were (supposedly) responsible for a range of 
social ills, such as unemployment and crime, and were not perceived to belong in 
South Africa. 
 
Thus, the aggressors were seen to be all that the victims were not; they were those 
who deserved to be in South Africa, to benefit from the post-Apartheid 
dispensation and its symbols (such as RDP houses), and to enjoy the right to 
life/citizenship. These characteristics are only made possible in the light of or in 
the presence of a comparison, of a group that lacks these characteristics. In this 
way, a relationship of dependency is indeed established: those who belong, who 
are to be considered South African citizens deserving of life, are dependant on a 
group who do not belong and who have no rights in South Africa, including the 
right to life. In this way, it can be seen that there was a strongly biopolitical 
character behind the riots. The attacking, beating, and killing of foreigners served 
to reinforce and reproduce the lines of demarcation between those who belong and 
those who do not. It thus served to reinforce the demarcation between citizens and 
those placed within a state of exception. Central to this demarcation of belonging 
is bare life. 
 
Agamben argues that, ?the first foundation of political life is a life that may be 
killed, which is politicised through its capacity to be killed? (Agamben: 1998: 
p.89). In this way, the production of life without significance, of life that does not 
deserve to live, of life that can be killed, is an integral part of politics and 
governmentality in contemporary times. The construction of the political 
community rests on the construction of a barrier, which contains within it a barrier 
between life and death. Inclusion in the community brings with it the right to life 
and invests life with meaning.  
 
Exclusion, by the same token, removes one?s right to life, and establishes one 
firmly as life that can be killed, as bare life. This mode of politics and policing the 
lines of belonging reached its apogee in regimes which wielded immense 
 139 
bureaucratic, military, and panoptic powers, such as the Nazi regime or the Soviet 
Union. However, it is apparent that this mode of politics has worked its way into 
the general, more dispersed forms of politics and is at work in most societies 
today. The May riots bare testament to this.  
 
Within the attacks, as has been noted, attackers went door to door seeking out 
foreigners, demanding identification and murdering those who resisted or were 
found to not ?belong?. Before the attacks took place, as Councillor Sinah Gwebu, 
an ANC councillor for Alexandra Township described, ?People armed to the teeth 
with pangas? congregated and demanded that ?They [foreigners] must go!?116 
Here it is obvious that the attackers? demands for the removal of foreigners from 
their communities were based on and could only be satisfied through violence. 
The attempts by locals to reinforce and assert barriers of belonging depended on 
violence and murder. This is not dissimilar from the manners in which the Nazi 
regime disposed of all of those who did not deserve to ?belong? and live through 
murder on an immense scale. Although the methodology and scale may vary 
greatly, the objective remained the same: the demarcation of the community 
through violence.  
 
The comparison with the Nazi case may seem extreme, yet it points to very 
significant features of politics in contemporary times. This feature of 
contemporary politics has made itself felt in many cases around the world, 
including the infamous ?communal? riots in India. Once again in these riots, the 
politics of belonging and of biopolitics was at work, as Hindus massacred 
Muslims in attempts to assert their nationhood and right to belong. In these 
attacks, the power and unity if Hindutva was evoked and mobilised, and required 
a demarcation based on life and death in order to have substance (Engineer: 2004. 
see also Bhatt: 2001. and Shah: 2002). During the riots of May 2008 and other 
attacks on foreigners in South Africa, a similar current is at play. In these attacks, 
the notion and status of South African citizenship was prominent, and has been 
mobilised as a framework and justification for violence and murder.  
                                                 
116
  Interview with Councillor Sinah Gwebu, conducted on 6 August, 2008.  
 140 
 
The fact that citizenship is at the heart of the attacks points to a highly significant 
feature of power, politics, and existence in societies today. In the Nazi case, the 
state was the arbiter of life and death, and encapsulated this power within its 
machinery, bureaucracy, science, and laws. In South Africa today, this power over 
life and death has been appropriated by the citizenry. However, it still bases itself 
on the state and peoples? relationships with it. The attacks were made possible and 
were in fact mediated by people?s relationships with the law and the state; 
people?s ?statuses? were at the forefront of the violence and they distinguished the 
attackers from their victims, thus providing focus for aggression and blood-lust. 
These statuses stem from and are regulated by the state. Consequently, the attacks 
need to be examined in light of state power and its relationship with and influence 
over individuals. In this way, the attacks can be understood in further complexity, 
as can the nature of the state, state power, and existence today.  
 
However, whilst status and rights to belong stem from the state, this does not 
mean that people are the simple conduits or puppets of the state. They illustrate 
that the state provides a field for action that can be utilised by people for their own 
ends and desires. During the May attacks, people were acting through the 
citizen/outsider distinction, and came to capitalise on the vulnerability enforced 
on foreigners by the state through the state of exception. At the same time, 
however, they were challenging the state itself and its hold over violence, life, 
death, and social control.  
 
In Agamben?s formulation, the state takes on a monolithic, all-encompassing 
power. Through the use of the Nazi example, Agamben argues that the state holds 
power over life and death and over populations in their entirety. It thus appears 
that the state is an inescapable arbiter of existence and violence. Whilst this point 
of view is instructive, it does, however, attribute a power and status to the state 
that is not reflected in most societies. As the May riots show, this power over life 
and death does not only rest with the state. It is in the hands of members of the 
population too.  
 141 
 
In the attacks on foreigners, people were appropriating the state and its power 
over life and death for their own means and to satisfy their own needs. We see this 
in accusations that ?criminal elements? were active in the attacks and took 
advantage of them as opportunities for looting and robbery117. David B. Coplan, 
for example, argues that  
 
?young men attacked their foreign and in some cases even South 
African neighbours from more northerly ethnic groups because 
the impetus was looting and they were the most convenient 
target? (Coplan: 2008: p.11). 
 
Here we see that the state is not only the arbiter of existence in society; it is also 
malleable and open to manipulations by the population itself. As Rose points out, 
?The technologies and devices that are assembled into the apparatuses of the state 
have neither the unity nor the functionality ascribed to them.? (Rose: 2006: p.148) 
This is apparent in the ways in which the May riots provided a challenge to state?s 
position as the holder of power over life, death, and violence and, consequently, to 
Agamben?s theory of the state.       
 
At the same time, however, the attacks were made possible by the vulnerability of 
foreigners in South Africa today. This is a vulnerability that stems directly from 
the state. The previous two chapters have documented how, through a range of 
laws and practices, immigrants in South Africa have been placed in a state of 
exception. Through laws which deprive them of all but the most basic of rights, 
which illegalise and ban their presence in this country and which reserve social 
services and freedoms for citizens and approved populations, illegal immigrants 
have been excluded and placed in vulnerable, bare positions in South African 
society. This bare position has been enforced through police practices which 
harass and abuse migrants, and institutional practices which ensure their 
exceptional status is enforced through violence, deprivation, denial of rights to 
                                                 
117
  Interview with Councillor Sizukela Nkosi, conducted on 6 August, 2008. 
 142 
dignity and exposure to death. This has served to construct a real state of 
exception for illegal immigrants, suspected and ?real? in South Africa, and needs 
to be seen as the foundation for their vulnerability and status as legitimate or 
?convenient? targets for locals seeking to vent frustrations, make political 
statements, and enforce their own identities and rights to belong. 
 
In a real state of exception, as quoted earlier, law becomes ?indistinguishable 
from life?, and life thus comes to exist and be regulated by this state of exception. 
This is the case with foreigners in South Africa and needs to be regarded as a 
direct cause of the attacks and their extremely violent nature. Through state 
actions which remove illegal migrants? rights to dignity, to services, to be present 
in South Africa, and ultimately, to life, this category of people becomes 
established within a state of exception, and come to represent bare, marginal life 
through which inclusion and the privileges this grants can be given significance 
and form. Law as life and life as law have blurred and the legal categories of 
?citizen? and ?exception? have come to mediate the very boundaries between life 
and death. Due to this, immigrants who have been marginalised, criminalised and 
established as outsides to the law and society are made out to be legitimate targets 
for violence.  
 
So, it can be argued that attackers during the May riots were in fact acting on and 
through the framework of the state, but challenging it at the same time. This is 
apparent in the cries utilised by the rioters: cries of ?They must go??118, ?This 
country is ours, they should leave? and ?The foreigners must leave or die??119, all 
illustrate how state-conferred subjectivities and status were at the centre of the 
violence. The violence was a contest over the right to belong within the nation-
 state and was consequently framed in its terms. This is indicative and a disturbing 
confirmation of the argument made previously that state power contains within it 
the ability to produce subjectivities and to frame actions for people. This is a 
powerful example of state power and a disturbing consequence of 
                                                 
118
  Interview with Councillor Sinah Gwebu, conducted on 6 August, 2008. 
119
  Ndlovu, N. ?They must leave or die??. article appearing in the Mail and Guardian, 16 to 22  
May, 2008. 
 143 
governmentality that bases itself on biopolitics ? the problem of populations and 
contest over life and death.    
 
In the case of the riots, the subjectivities produced by governmentality and the 
state of exception have reached their ultimate conclusion as a contest over life and 
death. In this case, we see that state power is not at operation only within the 
mechanisms of the state ? its bureaucracy, military and police forces, and laws ? 
but is at work in the very identities, subject positions, and interactions of 
populations. This is confirmation of state power to produce populations and to 
provide barriers between inclusion and exclusion, life and death.  
 
Politics and bare life 
 
In Councillor Nkosi?s statement ?There are no differences between citizens and 
non-citizens?, a very significant factor in the violence emerges. The violence was 
an attempt to reinforce the barriers of citizenship and inclusion and it came to do 
so in the most bare, violent terms. It was, in fact a political action, one based on 
and produced by the state, governmentality, and biopolitics. We have seen how 
state laws and policies have established citizenship as the arbiter of one?s right to 
claim privileges and protections from the state, as well as a place within the 
community. In areas in which people lack these privileges and protections and are 
yet to realise the fruits of citizenship, despite enjoying this status, methods are 
required to reassert this and provide substance to it. These methods were found in 
the attacks, as citizenship was reasserted as the barrier between bare life ? life that 
can be killed ? and existence in the community. At his presentation at the Human 
Sciences Research Council?s symposium, James Oatway described how in the 
aftermath of the attacks there were ?dead bodies lying in the street whilst people 
went about their daily business?. This is a clear indication that the attacks were a 
method of producing bare life.  
 
This is life that is not reprehensible or hidden, but that provides the very 
foundation of political life. It is life (or death) that needs to be present in order for 
 144 
political life and inclusion in the community to have significance. As Agamben 
points out, life exposed to death is the ?originary? or foundational political 
element. The attacks most certainly did expose ordinary citizens and communities 
to death ? as is evidenced by Oatway?s descriptions and by the photograph printed 
on the front page of The Star newspaper of a group of schoolchildren pointing and 
laughing at a refugee from the violence sheltered at the Alexandra Police 
Station120 ? and thus served to provide the foundation or element for political life 
in South Africa. They took place predominantly in impoverished areas in which 
people are yet to enjoy the fruits of their citizenship. Thus, alternative methods 
were needed to draw the demarcation between citizens and non-citizens. This line 
came to be drawn through death and violence: citizens were established as those 
protected from violence and entitled to belong, non-citizens were established as 
bare life. In this way, the attacks served not only as means of producing bare life, 
but as means of establishing political life too, and what it means to be included in 
the political community.  
 
This gives credence to Andrew Norris?s claim that ?politics must again and again 
enact its internal distinction from bare life. It must repeatedly define itself through 
the negation of bare life ? a negation that can always take the form of death.? 
(Norris: 2005: p.5) We thus need to understand the May riots as political acts, acts 
that served to redefine political life in South Africa and base it in terms of the 
struggle and distinction between life that deserves to live and life that deserves 
death. Politics and the politics of belonging have thus come to be defined in terms 
of life and death, inclusion and exclusion.                                              
 
The political element of the attacks was clear from their outset. According to an 
ANC report on the violence, the momentum for the attacks was generated at an 
Inkatha Freedom Party (IFP) Annual General Meeting held in Alexandra over the 
weekend of the 10th and 11th of May. At the meeting, ?a resolution was taken to 
drive foreign nationals out of Alexandra?, and the attacks began ?immediately 
                                                 
120
  The Star, Thursday, 15 May, 2008. 
 145 
after the AGM?121. Prior to this meeting, a South African National Civics 
Organisation (SANCO) Summit held on 29 March also ?resolved to drive out the 
foreign nationals from Alexandra? and an Alexandra Community Policing Forum 
(CPF) meeting held on the 6th of May ?blamed rising crime, murder and rape on 
migrants?122. There was thus a strong element of community political organisation 
and mobilisation at work prior to the attacks. The Idasa report into the riots also 
notes that the attacks were made possible through ?spontaneous, albeit troublingly 
effective, local organising,? learnt in South African communities? ?deep 
experience, from the struggle era, with this type of collective violence and 
protest.? (Idasa: 2008: p.9) 
 
Thus, it emerges that the attacks were political actions, originating within local 
communities themselves. They need to be regarded as forms of local political 
action and mobilisation. However, to lump them in the same category as other 
forms of local organisation, such as service delivery protests, is incorrect. Rather, 
they need to be understood as actions of biopolitics, motivated and framed by the 
state of exception and politics of belonging. The biopolitical nature of the attacks 
is obvious, as their focus was on bodies, lives, and the reproduction of the 
community, rather than structures or material conditions. Foucault uses the term 
?biopolitics? to ?designate forms of power exercised over persons specifically in 
so far as they are thought of as living beings.? (Gordon: 1991: p.5) It is a form of 
politics that is ?concerned with subjects as members of a population [italics in the 
original].? (ibid)  
 
However, in the HSRC?s report into the violence, the authors write: 
 
?Some of the locales in which these [attacks] occurred have also 
been the site of violent and other forms of visibly bold protest 
around other issues, most notably service delivery. For example, 
                                                 
121
  African National Congress. (n.d.). Greater Johannesburg and Zone 13 Briefing to ANC 
Provincial Executive and National Executive Committees. ?Status Report on the Alexandra 
Community Conflict (Xenophobic Attacks)?. p. 1.   
122
  ibid. 
 146 
Mamelodi, the site of xenophobic violence in March 2008 which 
saw the burning and looting of shacks also experienced violent 
forms of protest (attempted vandalisation [sic] of businesses) 
against service delivery and the delivery of houses in particular 
in 2007. In September 2007 residents of Alexandra, which was 
the focal point of recent anti-migrant violence were protesting 
against a lack of service delivery and housing provision by 
occupying a construction site in the township.? (HSRC: 2008: 
p.24) 
 
It is thus possible to conclude that some of the issues motivating the attacks 
against foreigners were residual and had motivated prior protests. However, to 
regard the two forms of violence as part of the same trend is incorrect. The 
motivation, targets, and sheer scale of violence in the May riots points to them 
being of a different nature. Through actions focused on the very bodies and lives 
of their victims, attackers were redrawing the lines of political inclusion, rather 
than protesting against the government?s poor service delivery or their on-going 
frustrations. They were seeking to re-make the political community and once 
again bring substance to their citizenship. This is illustrated by the fact that some 
victims of the attacks were subjected to the most extreme form of violence used 
during the political conflicts of the late Apartheid period. .   
 
The photographs of Ernesto Alfabeto Nhamuave, better known as ?the flaming 
man?, emerged as the iconic pictures of the May riots. In the photographs which 
were displayed prominently and reproduced again and again in newspapers, 
Ernesto is shown on all fours as flames engulf his body after he was set alight by 
rampaging locals. For Christine Qunta, a lawyer, author, and contributor to The 
Star, the burning of Ernesto ?revived memories of the horror of the 1980s when 
people settled political differences by resorting to burning people?123. Similarly, 
Sonwabile Mancotywa draws parallels between the burning of foreigners in 2008 
and the ?necklacing? of Black people suspected of collaborating with the 
                                                 
123
  Qunta, C. ?Consider a third-force option?. article appearing in The Star, Thursday, 5 June, 2008. 
 147 
Apartheid state124. In both cases burning is used to bring about ?the most 
excruciating death imaginable? and to serve as a symbol of ultimate contempt and 
destruction125. Donald Horowitz, in The Deadly Ethnic Riot, notes that ?In an 
ethnic riot, fire is an emblem of complete hostility? (Horowitz: 2001: p.113). 
Thus, burning and the use of fire is a common and extremely symbolic mode of 
violence in riots. 
 
The fact that this was used against ?traitors? during Apartheid and again against 
foreigners in 2008 serves as a highly illustrative point. In both cases, attackers 
wished to make clear their ?complete hostility? and utter contempt for the victims. 
This can be put down to the fact that in both cases the victims were perceived to 
be threats to broader political societies. In the case of collaborators or traitors, 
these people were suspected of setting back the struggle against Apartheid and the 
aspirations of the oppressed. In the second case, foreigners have been targeted for 
their perceived crimes against South Africans, such as stealing jobs and women, 
taking services away from deserving locals, and infringing the country?s 
regulations and laws. The fact that the two crimes, incomparable at face-value, 
receive equal punishment tells us something highly significant: today, citizenship 
is the mark of belonging within the community. Those without this are to be 
regarded as enemies who threaten and have no place within the community and 
whose lives have significance only in the fact that they can be killed. In both 
cases, inclusion in the political community is measured through exposure to life 
and death.   
 
Because foreigners have been constructed within a state of exception, they, like 
traitors and collaborators, should not and cannot be included in broader society as 
they are committing crimes against those who belong, who are part of the entitled 
and legitimate community. Burning is consequently used as a visible means of 
making this point and ensuring their exclusion. In both cases, burning was used as 
an inherently political and symbolic act, and served as a means of demarcation 
                                                 
124
  Mancotwya, S. ?Nothing justifies this savagery?. article appearing in The Star, Monday, 2 June, 
2008. 
125
  ibid. 
 148 
between those who deserve life and inclusion in the community and those whose 
only significance is the fact that they can be killed. In this way, their deaths serve 
as foundations and symbols for belonging. The deaths of foreigners, like the 
equally violent deaths of collaborators, are thus highly (bio)political.    
 
We can thus conclude that the May riots were indeed political actions, actions that 
centred on the politics of belonging and that have been framed in the state of 
exception and the production of bare life. They are representations of the modes 
of biopolitics and governmentality produced in contemporary societies and which 
are circulated and produced by state power. In framing attacks in terms which 
derive from the state ? terms like ?immigrants?, ?citizens?, ?foreigners?, and 
?locals? ? people are creating political communities and acting in terms of 
classifications that stem from the state. The state has used violence against and 
hostility towards foreigners as a means of demarcation and creating the political 
community. This violence, as has been argued, has given form to the excluded 
community, but has simultaneously provided a basis for inclusion. In this way, the 
state?s approaches to and use of violence have created insiders and outsiders, 
citizens and exceptions. What is of vital significance now is that people have 
accepted and assimilated these state-produced statuses and relationships for 
themselves.  
 
The riots represent, as has been illustrated, a form of popular politics that, whilst 
being framed in terms that are essentially ?top-down? (in that they are derived 
from the state), have sprung up and been mobilised at community, grass-roots 
level. This is a clear indication that state governmentality ? the art of producing 
populations and dealing with the ?problem of population? ? and biopolitics has 
become ingrained within societies and is now at the forefront of interactions and 
relationships between communities. The May riots illustrate this, and show how 
citizenship ? the right to belong ? has become a fundamental instrument of 
governmentality and biopolitics. 
 
 
 149 
Locating discourse in the state and the state in discourse  
 
The extent to which the form of governmentality and biopolitics represented by 
citizenship has pervaded societies is made clear from the nature of the riots and 
their origins in community politics and mobilisation. This is of great importance 
for how state power is to be understood today. In From Foreign Natives to Native 
Foreigners, Michael Neocosmos argues that the rise and spread of xenophobia in 
post-Apartheid South Africa is a result of ?state xenophobic discourse? 
(Neocosmos: 2006). He attributes the prevalence of xenophobia to hostile, 
xenophobic attitudes within the government and lays the blame on politicians 
such as Mangosuthu Buthelezi for fomenting these dangerous sentiments in South 
African society. For Neocosmos, xenophobia is entirely a ?top-down? 
construction, and can be attributed to individuals within the state and state 
practices which have been reproduced and entrenched within broader society. He 
thus contends that a form of ?popular-emancipatory politics? is required to 
counter-act this and stamp out xenophobia in South Africa (Neocosmos: 2006: 
p.123).  
 
This argument is extremely narrow in focus, however, basing itself entirely on the 
state and its ?top-down? relationship with society. In the light of the May riots and 
other attacks by locals against foreigners, it is clear that xenophobia and violence 
against foreigners is rife within local communities as well as within the higher 
echelons of the state. The May riots were themselves a form of popular politics, 
and thus should dispel Neocosmos? blithe claim that politics from below will 
eradicate xenophobia. What the riots indicate is that state subjectivities and 
practices of population production have entrenched themselves firmly within 
society, and have come to mould people?s conceptions of themselves, their 
communities, and the rights of people to exist therein. The very notion of the 
community, of the South African nation and citizenship has become dependant on 
this form of exclusion and politics, and thus thrives within local communities, as 
well as within the state. Neocosmos does not deal sufficiently with the power of 
the state and its ability to define and create populations and subjectivities, and 
 150 
thus he fails to account for the type of popular politics at work in attacks such as 
those witnessed in May.   
 
This is primarily because his focus is fixed too firmly on the top, on the state and 
the discourse it disseminates. This is an important area, but it is only a part of the 
broader phenomenon. The state needs to be situated within the nexus of power in 
which it is located and most potent. The state has multiple mechanisms and 
techniques used to disseminate discourses in society and mould populations. It 
does not operate in a top-down way, but in a range of diffuse and subtle methods. 
As Sharma and Gupta argue, 
 
?Instead of assuming that states are the supreme ?holders? of 
power and deploy that power exclusively to dominate and rule, 
governmentality offers a lens to understand how power is 
exercised in society through varied social relations, institutions 
and ?bodies? that do not automatically fit under the rubric of ?the 
state?.? (Sharma and Gupta: 2006: p.25) 
 
Neocosmos does not do this, and thus is unable to account for the popular content 
of xenophobia and violence against foreigners. This violence and hostility, whilst 
stemming from the state, needs to be framed in this conception of 
governmentality, and regarded not as something that is produced through the 
state, but as something that is produced through the population and mechanisms 
of social control instead.  
  
At the same time, what needs to be examined, in addition to the state?s power to 
disseminate and circulate discourse, is the very discourse within which the state 
itself is located. For it needs to be remembered that not only is the state a producer 
of discourse, it is itself the product of discourse.  
 
This discourse is one of control and regulation, one that finds its pinnacle in the 
state and its ability to marshal bureaucratic, military and police force, the law, and 
 151 
panoptic mechanisms in service of this. It is, however, one that is not confined to 
the state, and is at work in much broader segments of society. We see this in the 
aftermath of the riots, in which various commentators and individuals spoke out 
about the need for the state to do more, to exercise greater control over the lines of 
demarcation and inclusion in South Africa in order to prevent further outbreaks of 
violence against foreigners. For example in their key recommendations to respond 
to the violence, the HSRC ?call on government to conduct a national audit on the 
occupation of RDP housing and to take steps to ensure that only South Africans 
occupy this form of public shelter.? (HSRC: 2008: p.10) 
 
In addition, the HSRC authors contend that 
  
?It is essential that government move urgently and effectively to 
protect South Africa?s borders and points-of-entry [as] no 
migration policy or strategy aimed at alleviating xenophobic 
tensions can be contemplated if the national borders are porous 
and people can come and go as they please.? (ibid) 
 
They consequently blame the violence partly on the state?s ?lack of control? (ibid) 
over borders and the movements of people and argue that this form of violence 
can only be remedied through increased state control and regulation.  
 
This view was also supported by Councillor Nkosi, who stated that the best way 
to prevent further attacks is to  
 
?Give people assurance that we [the government] are in control. 
At the moment that assurance is not there. People don?t believe 
that we are in control. People come into our country and live 
where they like. They also commit criminal activities like our 
own [people], but sometimes even worse. So if our people can 
be given that assurity [sic] that something is being done to make 
 152 
sure that there is control [then further attacks will be 
prevented].?126 
 
Here again we see that the ideal and necessity of control is not only preserved and 
upheld by the state, but is idealised by members of society too.  Thus, it is 
apparent that the discourse that is embodied by the state is not only produced by 
it; the state is itself situated and produced by this discourse. In calls for the state to 
?close the borders? (HSRC: 2008: p.38), to ensure that only citizens benefit from 
state projects, and for greater control over people?s movements to be exerted, we 
see how the power of regulation, control, and policing has diffused throughout 
and become idealised within society. Thus, whilst the violence was in many ways 
the product of state-imposed relationships and subjectivities, people have retreated 
to the shelter of state power and control in order to prevent it occurring again. 
 
Thus it needs to be recognised that the state is as much a product of the desire for 
control and regulation as it is the source of this. This is because, as has been stated 
previously, the formation of the community, the demarcation of those who belong 
? which is a central feature of contemporary societies ? relies on this control, 
regulation, and policing. The problem of population is one faced by all societies 
wishing to construct barriers on inclusion/exclusion, and is one that is seemingly 
best answered through tighter control and regulation. The state thus owes its 
position of dominance in society to this conception of politics and belonging and 
relies on this to maintain its position. The May riots have shown this, and thus 
have shown how the politics of belonging have today been framed in the 
discourse of control and policing. If we are to understand the violence, we need to 
understand this pervasive discourse within society, and find measures that extend 
further than ?popular politics? to combat it.  
 
During the May attacks, people were expressing their displeasure with state 
failures to police lines of inclusion/exclusion ? ?There are no differences between 
citizens and non-citizens anymore? ? and consequently took this responsibility on 
                                                 
126
  Interview with Councillor Sizukela Nkosi, conducted on 6 August, 2008. 
 153 
themselves. During the riots, 50 people were arrested ?for public violence and 
robbery? in Alexandra alone and police ?had to use rubber bullets to disperse 
violent crowds?127. In total, ?more than 1 400 people [were] arrested in connection 
with the xenophobic violence?128. Rioters battled against the police as they 
constructed road blocks, threw objects at police officers, and even shot at them in 
some instances129. According to reports, ?Area[s] resemble[d] war zone[s] as 
police battle[d] to contain attacks on foreigners.?130 Eventually the army had to be 
called in to quell the situation and prevent further violence131. Thus, locals 
actually found themselves acting as combatants against the state. 
 
At the same time, however, they were acting in the name of the state and in 
defence of their abilities to lay claim to and be recognised as members within it. 
This contradictory position shows how powerful and pervasive the ideal of control 
and policing the lines of belonging has become. It also shows how 
governmentality and the production of populations stems from the state and its 
discourses, but is also situated within a broader discourse that encapsulates the 
state itself. The riots were themselves a form of population production and 
regulation, and illustrate how this feature of modern biopolitics and 
governmentality is present within popular politics and people?s subjectivities, as 
well as within the state.  
 
It is also indicative of another omission in Agamben?s theory and understanding 
of the state. As pointed out previously, in Agamben?s theory the state takes on 
immense power and proportions, and is seen as the ultimate decision-maker and 
potentate in society. It appears, in Agamben?s work, to operate with efficiency 
and internal cohesion and always with a unity of purpose and results. However, 
                                                 
127
  Alexandra South African Police Service. Communication Office. (2008). Report on violence in 
Alexandra. 13 May. See also Eliseev, A. Seale, L. Maphumulo, S. and Smillie, S. ?On the edge of 
a bloodbath?. article appearing in The Star, Tuesday, 13 May, 2008 and Idasa. (2008).    
128
  Hawkey, K. ?Special courts to try xenophobia accused?. article appearing in the Sunday Times, 
1 June, 2008.  
129
  Interview conducted with Constable Neria Malefetse, on 13 August, 2008. 
130
  Seale, L. Smillie, S. Ngqiyaza, B. and Eliseev, A. ?Mob violence spreads to Diepsloot?. article 
appearing in The Star, Friday, 16 May, 2008. 
131
  Flanagan, L. and Ngqiyaza, B. ?Now army rolls into townships?. article appearing in The Star, 
Thursday, 22 May, 2008. 
 154 
whilst possibly evident in the Nazi regime, this type of cohesion and purpose is 
not a feature of other societies and effects of state power. The fact that May saw 
communities battling the police and state, whilst simultaneously invoking it and 
their rights to it, illustrates a particular irony. In this case, the empowered citizens 
that have been the focus of state nation-building projects came to oppose and 
threaten, rather than support and respect the state.  
 
Their abilities to oppose it and the belief that they had a right to invoke violence 
against others were based on the fact that they are subjects of the state and deserve 
to be rewarded accordingly. It needs to be remembered that their positions in 
society and privileges have been made possible through the negation and 
vulnerability of others. This is a project that has been led by the state but, as the 
violence of May has shown, has harmed it too.   
 
Here we see that the subjects produced by the state are not passive nor are they 
simple products of the state who act accordingly. The incidents of May show this, 
and show the agency and ability to appropriate the state and its discourse 
possessed by people. This is absent in Agamben?s theory and understanding of the 
state, and is a crucial addition if we are to understand the state and its relationship 
with people and society in all the requisite complexity. As Abrams notes, ?The 
state is a unified symbol of an actual disunity.? (Abrams: 2006: p.124) This 
disunity was apparent in the actions of citizens in May, and is absent in 
Agamben?s account.  
 
Producing the population ? part three 
 
Another way in which the state?s power was challenged and appropriated by 
communities during the May attacks is evident in the ways in which the attacks 
served as a means of demarcation and population production. It has been argued 
previously that the powers of demarcation and population production rest 
powerfully within the state. At the same time, however, the events of May have 
 155 
shown that this power, whilst still located in and stemming from the state, also 
vests itself within the communities created and empowered by the state.  
 
One of the key indications that a form of population production was at work 
during the attacks and in their aftermath is illustrated clearly in the already-
 mentioned photograph printed in The Star under the headline ?Kids learn lessons 
of hate?132. Here it is clear that children have learnt that foreigners are outside of 
the community and consequently outside of the realm of life that deserves to live. 
They deserve to be scorned, ridiculed, harassed and even killed simply because 
they are not part of the community. This is made shockingly clear in an incident 
recounted by James Oatway. 
 
During his presentation at the HSRC seminar he recalled how a seven year old 
boy came up to him and told him that he wants ?to kill a Shangaan ?because they 
steal from us? ?. Here it is clear that lines of demarcation have been drawn and 
have been reinforced through violence and the biopolitical production of bare life. 
The production of bare life has served to produce populations and reproduce them 
within people?s subjectivities, relationships, and experiences.  
 
Within the incidents recounted here, we see that a means of population production 
has been circulated within communities and has come to draw the distinction 
between bare life and life that deserves to live. This has been framed by the state 
and people?s relationships with the state. Hostility towards immigrant 
communities has been fuelled through the supposed threats they pose to the 
community ? ?they steal from us? and take away women and jobs ? as well as 
threats they pose to the state and its ability to regulate and control populations. 
This is shown by Councillor Sinah Gwebu?s compliant that ?People in the 
community do not respect the by-laws; they just put their shacks wherever they 
want?133 as well as Councillor Nkosi?s claim that people need to be reassured that 
the state has control. Here again, we see that the attacks were prompted by 
                                                 
132
  The Star. Thursday, 15 May, 2008.  
133
  Interview with Councillor Sinah Gwebu, conducted on 6 August, 2008. 
 
 156 
people?s perceptions that societal control, and hence their positions of privilege 
within the community of insiders or citizens, was under threat and needed to be 
reinforced.  
 
Again, it is of vital significance that rioters, although involved in illegal activities 
which were condemned and opposed by the state, were seeking to reinforce the 
state and were acting out state-produced subjectivities and distinctions. Here we 
see clear evidence that the state can produce populations, but is simultaneously 
produced by these subjectivities too. According to Althusser, the school is the 
dominant ?State Ideological Apparatus? and is the most powerful and prominent 
instrument in the circulation of state ideology and production of subjects 
(Althusser: 2006). 
 
Whilst it is true that the school is a dominant feature of state apparatuses, the 
events recounted above have shown that ideology and discourse circulation are 
not only located within the state. During the May riots, discourse circulation and 
subject production took place outside of the state and school, and children?s 
subject positions were learnt through violence and riots. At the same time, 
however, these subject positions reinforce the state, as they are based on 
distinctions between citizens and exceptions which stem from the state directly.  
Here again we see that whilst the state is a prominent force in society and the 
production of subjects, this power does not only lie within the state and can be 
located in various other aspects of the population.    
 
Exploring the disunity of the state 
 
At the same time as they served to reinforce state power, the riots proved in many 
ways that alternative subjectivities and relationships are possible. During the riots, 
people fleeing the attackers found refuge in police stations, where emergency 
shelters were set up. This was an inversion of the prior relationship between 
immigrants and the police, as those who had previously acted as their persecutors 
(as detailed in the previous chapter) now came to serve as their protectors. For 
 157 
example, when the violence broke out, ?People started flocking in at the 
[Alexandra police] station for safety [sic].?134 This pattern was repeated 
throughout the country and police stations moved from being places of hostility to 
places of refuge for the victims of the attacks. 
  
Bishop Paul Verryn recounts that once the attacks broke out and people started 
flocking to the Central Methodist Church to find refuge, ?The police were 
incredibly vigilant [in protecting his church]? and even came to prevent three 
separate attempts to attack the church135.  Joyce Tlou too points out that the police 
 
?reacted better than we expected. Previous police responses 
were actually a dereliction of duties ? facilitated harassment and 
looting. But this time they went out of their way, beyond their 
call of duty [in their efforts to protect people].?136 
 
This indicates that relationships established by state-produced subjectivities are 
not set in stone and are changeable. The emergence of new subjectivities is 
possible and the state, it needs to be reiterated, does not act with a constant unity 
of purpose. Abrams argues that 
 
?Political institutions?conspicuously fail to display a unity of 
practice ? just as they constantly discover their inability to 
function as a more general factor of cohesion.? (Abrams: 2006: 
p.124) 
 
This is apparent in the change in attitudes and approaches towards immigrant 
communities displayed by the police during the attacks, and the ways they came 
to serve as protectors of those they had been allowed and actively sought to 
persecute previously. 
                                                 
134
  Alexandra South African Police Service. Communication Office. (2008). Report on violence in 
Alexandra. 13 May.  
135
  Interview with Bishop Paul Verryn, conducted on 1 December, 2008. 
136
  Interview with Joyce Tlou, conducted on 11 July, 2008. 
 158 
 
However, the presence of bare life and a state of exception does make this shift 
difficult. For example, whilst police and the South African army did attempt to 
protect the victims of the riots, the protection they offered based itself, more often 
than not, on the use of force. This is evident in the picture printed in the Sunday 
Times newspaper on the 25th of May depicting the last moments of Ernesto 
Alfabeto Nhamuave, ?the flaming man?. In this photograph, whilst Ernesto lies 
prostrate and burnt but still alive, a police officer stands over him, ostensibly in 
order to protect him. However, this officer has no medical equipment or ability to 
offer Ernesto any care or comfort; all he has is his gun, which he holds above him, 
poised to shoot. Here we see that, confronted with bare life, the state has little to 
offer other than force.  
 
This is reiterated by comments made by an official at an External Stakeholders? 
Meeting for the Crown Mines Refugee Reception Centre, held on the 9th of July, 
2008. At this meeting, it was noted that the huge influx of people seeking refugee 
status and the renewal of their permits in the wake of the riots had placed the 
centre under extreme strain. The centre found itself in a situation in which crowds 
were unmanageable and at one stage police officers had actually charged the 
crowds with horses and used force in order to disperse the crowds137.  
 
Responding to this, one of the officials from the centre stated that ?[They] had to 
use batons to save lives.? Here again we see that, confronted with disorder and 
bare life, the state has little recourse other than force and violence. The fact that 
this use of force is alleged to be for the protection of the victims on the receiving 
end shows clearly that force is all those in a state of exception can expect from the 
state. Within a state of exception, law loses significance and is replaced by force. 
This is made clear in the two examples cited here.  
 
The difficulty in shifting paradigms and approaches to dealing with entrenched 
subjects is further illustrated by an example of violence in the displaced persons 
                                                 
137
  Interview with Pastor, [real name withheld], conducted on 15 July, 2008.  
 159 
camps given by a Councillor from Benoni who attended a Gender Links Summit 
held to explore the attacks and their ramifications. In this case, the Councillor 
explained that staff at the camp had encountered more problems from the security 
personnel at the camps than with those sheltered there. She pointed out that one of 
the guards brought in exclaimed that he was ?going to ?f?? [sic] all the women? 
in the camp.? 
 
This illustrates that in some cases those who are entitled and remain powerful still 
regarded the victims of the attacks as nothing more than passive, bare life on 
which they could act and exercise their will. Here we see that the subject positions 
established through the politics of belonging and state of exception are very much 
entrenched within people and are altered with difficulty or very little success.   
 
Thus, whilst the riots have shown that alternative subjectivities and relationships 
are possible, something Agamben?s work does not address or provide enough 
space for, it is apparent that the reality of a state of exception does make this 
difficult. In instances in which the state of exception becomes the normal mode of 
operation, force, rather than law, predominates, making the emergence of new 
relationships and subject positions difficult indeed.. The production of bare life, 
biopolitics, and the state of exception have become central mechanisms of 
governmentality and population production today and are thus often the 
predominant forces at work in society. This establishes the field for action and 
relationships in very specific ways, which often prove inescapable.     
 
Active citizens and bare life 
     
The fact that death or exposure to death and bare life served to provide the 
foundation for the political community is borne out further in the public?s 
responses to the attacks. It is notable that the majority of the media and general 
public were extremely quick to come out in condemnation of the attacks. The 
outpouring of donations, charity, and sympathy for the victims was noted and 
lauded as South Africans ?opened their hearts to the refugees? and victims of the 
 160 
violence. Whilst commendable, these actions of giving and asserting the 
generosity and goodness of the majority of South Africans too can be framed in 
and understood as part of the practice of biopolitics and of the politics of 
belonging.  
 
At the seminar hosted by Gender Links, William Bird, from the Media Monitoring 
Project, criticised some elements of the media for the way in which they portrayed 
the victims of the violence. As the photograph of the refugee sheltered at the 
Alexandra police station described earlier, as well as the example provided by 
Bird, of another photograph on the front page of The Star, this time of a young 
girl, accompanied by the headline ?Please help this girl?138 shows, those who 
experienced the attacks were predominantly portrayed in the media as helpless 
victims, at the mercy of the rouge or violent elements of the South African 
community, and in need of sympathy and assistance from the kind-hearted 
members of society. Descriptions of the victims of the violence made use of 
words such as ?pitiful?139, ?shattered?140, and ?sorry?141 and the helpless state of 
the victims was conveyed and entrenched through the common use of 
photographs of women and especially children.  This is another manifestation of 
biopolitics and governmentality used in the production of populations.  
 
The most contemporary type of citizenship and the type endorsed and embraced 
by the South African Constitution envisages citizens as active, as contributing to 
the construction and formation of the nation-state/political community and as 
having rights as well as obligations. In this way, citizens and members of the 
nation have active rights whilst others who are present in a country, but do not 
belong, have simple passive rights. This formulation was introduced as early as 
the French Revolution where, in the Preliminairess de la constitution it was stated 
                                                 
138
  Flanagan, L. Skade, T. and Rondganger, L. ?Please help this girl?. article appearing in The Star, 
Tuesday, 27 May, 2008. 
139
  Serrao, A. ?Blind victims tell of pitiful plight?. article appearing in The Star, Wednesday, 21 
May, 2008.  
140
  van Rooyen, K. and Chauke, A. ?Samaritans lend a helping hand to shattered victims?. article 
appearing in the Sunday Times, 25 May, 2008.  
141
  Thakali, T. ?Sorry plight of the refugee children?. article appearing in the Saturday Star, 30 
August, 2008. 
 161 
that ?All inhabitants of a country must enjoy rights of passive citizens?all are not 
active citizens? (Sieyes, cited in Agamben: 1998: p.130). In that case, ?women?, 
children, foreigners, and all those who would not at all contribute to the public 
establishment? were denied active rights, and were thus secondary in the grading 
of citizens and members of society (ibid).        
 
Today, on a formal level at least, women have all the rights afforded to men, and 
even children are imbued with rights as well as the responsibilities incumbent 
upon active citizens. The Bill of Responsibilities, which has been proposed for 
inclusion in school curricula, calls on children to accept the responsibility of 
protecting and furthering ?the rights enshrined in the Constitution of the Republic 
of South Africa?142. The conclusion of the Bill states 
 
?I accept the call of this Bill of Responsibilities, and commit to 
taking my rightful place as an active, responsible citizen of 
South Africa. By assuming these responsibilities I will 
contribute to building the kind of society which will make me 
proud to be a South African.?143 


 Here, then, we see that a notion of citizenship that rests on participation, 
engagement, duties and responsibilities is being advocated and entrenched in 
South Africa. This notion and construction of citizenship can be traced back to the 
immediate post-Apartheid period and the Truth and Reconciliation Commission 
(TRC) which was intended to serve as a means of healing the divided nation and 
exposing the violence of the past. During the TRC hearings, according to Ivor 
Chipkin, the people of South Africa, ?were made whole, not by seeking to punish 
the perpetrators of human-rights violations, but by making them speak the truth 
about their criminal actions? (Chipkin: 2007: p.179).  
 
                                                 
142
  Republic of South Africa. Department of Education. (2008). ?A Bill of Responsibilities for the 
Youth of South Africa?,   
143
  ibid, 
 162 
Thus, in order for the South African nation to be re-formed and for people to be 
included in it they had to do two things: those who had committed crimes in the 
past had to admit to these and ask forgiveness and those who were victims had to 
forgive. In this way, the reconstruction of the nation and the granting of places 
within it depended on an active process, one of admittance, repentance, and 
forgiveness. Through the TRC, like the Bill of Responsibilities, South African 
citizenship and belonging has been framed in active, participatory terms.   


 This does not mean, however, that the division between passive members of the 
population and active citizens has been consigned to history. The fact that today 
South African citizenship relies on activities and participation to give it substance 
means that it needs a passive referent against which it can be measured. The May 
riots and the responses to them confirm that today immigrants and foreigners fulfil 
this role. The depictions and descriptions of those who experienced the attacks as 
helpless, pitiful, sorry victims who can survive only through the actions of the 
kind, concerned, generous, ?responsible? citizenry enforces this. Just as the killers 
during the riots asserted their right to belong and citizenship by actively producing 
bare, killable life, kind-hearted citizens affirmed their status as active citizens by 
caring for these victims.  
 
This is evident in the manner in which communities and individuals sought and 
found validation for their inclusion in the South African community through their 
acts of charity and concern during the riots and subsequent crisis. In an article in 
Jewish Affairs, Wendy Kahn writes that, through their relief efforts after the 
attacks (which included delivering basic aid packages including food, clothing 
and blankets, and collecting and distributing toys and educational materials) ?the 
Jewish community became recognised as a responsible and reliable NGO/body 
that could be called on when need arose [and] [i]t became known that the 
community would deliver and deliver fast.? (Khan: 2008: p.13) Here we see that 
the ?community?s? response to the crisis affirmed them as active, responsible, and 
deserving members of the South African nation. Kahn writes further that 
 
 163 
?In recognition of the contribution made by the Jewish 
community to the relief effort?we [the South African Board of 
Jewish Deputies (SAJBD)] were approached to participate in 
numerous forums addressing the short, medium and long term 
challenges it posed?The SAJBD has served on numerous task-
 teams and think tanks, including those organised by the HSRC, 
the Centre for Study of Violence and Reconciliation, the 
Disaster Management Forum, a parliamentary group hosted by 
Speaker Baleka Mbete and numerous interfaith working 
bodies.? (ibid) 
 
Here we see that not only has the Jewish community been affirmed as good and 
responsible, they have also been assured of their place in South African society 
and its numerous structures and institutions. This has been possible through their 
response to bare life, to a passive subject upon which they can act in order to 
affirm themselves and their belonging. It was an approach that was echoed by 
other sections of the South African community, including corporations and 
businesses, as the Old Mutual Foundation, Independent News and Media group, 
and the Oppenheimer family all donated large sums of money to funds set up to 
support the victims of the riots144.  In these cases, the wealthy sections of society 
were seeking to affirm themselves as good ?corporate citizens?145 who are integral 
members of the ?good? South African nation. Again, validation and nation-hood 
are made possible through the presence of bare life and the actions of active 
citizens in its presence.   
 
This has been a powerful and widespread consequence of the riots, and once again 
illustrates the biopolitical character of the events. Through them, bare life has 
been constructed and established firmly as a foundation that makes inclusion in 
                                                 
144
  Cox, A. ?Old Mutual offers support to refugees?. article appearing in The Star. Tuesday, 17 
June, 2008; Yoro Badat, N-J. ?R1,5m for xenophobia victims?. article appearing in The Star, 
Monday, 9 June, 2008; Serrao, A. ?Oppenheimers donate R1m to xenophobia victims? fund?. 
article appearing in The Star. Monday, 2 June, 2008. 
145
  Cox, A. ?Old Mutual offers support to refugees?. article appearing in The Star. Tuesday, 17 
June, 2008. 
 164 
the political community possible. Again we see that bare life is indeed part of the 
original foundation of political life. As Norris puts it, ?Bare life is a necessary part 
of the good life, in that the good life is both what bare life is not and is what bare 
life becomes.? (Norris: 2005: p.4) This was definitely borne out by the May riots 
and the responses of the ?responsible? citizenry.  
 
This distinction between the responsible, deserving citizenry and the excluded, 
bare community was further illustrated by the furore and upsurge of complaints 
from residents when displaced persons camps were set up in Johannesburg?s 
northern suburbs. Newspaper reports illustrate how residents in these areas were 
quick to respond and give charitably when the attacks broke out, but reacted with 
hostility and repulsion when camps were erected in their areas. As one report 
notes, residents in Corlett Gardens, where a camp was established, ?were so angry 
that there was talk of burning down the tents.?146 In another incident, one resident 
stated, ?I feel sorry for them but we don?t want them here. They must just go put 
[the camp] somewhere else,??147 whilst other residents ?complained they were not 
consulted and their property values would drop.?148 
 
Here again we see a stark divide between citizens and outsiders, as citizens are 
able to dictate the terms on which they interact with outsiders and the conditions 
under which outsiders exist. In this case, we see how one group?s sense of 
empowerment and dominance over another is played out, and made possible 
through distinctions between active, empowered citizens and passive, bare 
exceptions. Again, the on-going tolerance, safety, and existence of foreign 
exceptions was dependant on the cooperation and tolerance of citizens.   
 
 
 
                                                 
146
  Staff Reporters. ?Residents fume over tent towns in suburb?. article appearing in The Star, 
Monday, 2 June, 2008. 
147
  Gerardy, J. ?Shame about the refugees, but not in my backyard?. article appearing in the 
Saturday Star, 7 June, 2008. 
148
  Govender, P. ?Refugees decamp to posh suburbs?. article appearing in the Sunday Times, 1 
June, 2008. 
 165 
In the camps 
 
The passivity and bare nature of the non-citizens? lives was made most stark by 
the establishment of refugee or ?displaced persons? camps. These camps were 
erected to house those who fled or had their homes destroyed in the riots. In these 
camps, existence is fragile, and the passivity of those in them is extreme. As one 
report recounts, conditions in the camps are ?brutal, with inadequate nutrition, 
sanitation, shelter, and minimal access to heath care?149.  
 
Residents in the camps are reduced to waiting for charitable handouts in order to 
eat, clothe themselves and their children, and have shelter. As one refugee stated, 
?Most of the time we are just sitting here, hoping that time will pass.??150 The 
sight of people queuing, pushing and shoving and extending their hands through a 
steel gate just to receive an item of clothing to keep them warm through the night 
(as I witnessed at Cleveland Police Station) emphasises just how passive, 
hopeless, and vulnerable foreigners have become in South Africa at present.  
 
This passivity is extended to their very existence, as they now rely on the 
provision of camps and food by the state and charitable organisations for their 
immediate protection. The continued operation of the camps is dependant on the 
state. The camps were established as a temporary measure to deal with the crisis 
and were meant to be in place for two months, after which reintegration was 
meant to take place151. ?When the deadline comes on August 15 the government 
plans to dismantle the tents, shut off the water and cut off electricity.?152  
 
Thus, those sheltered in the camps are reliant upon the state and its impression of 
when conditions are right for reintegration for their protection and housing. It is 
                                                 
149
  Joubert, P. ?No place called home?. article appearing in the Mail and Guardian, 11 to 27 July, 
2008.  
150
  van Hoorn, I. and Mhlana, Z. ?In the camps?. article appearing in the Mail and Guardian, 6 to 
12 June, 2008. 
151
  Gerardy, J. ?Refugees find themselves living against a deadline?. article appearing in the 
Saturday Star, 5 July, 2008.  
152
  Rondganger, L. ?Time running out for shelter refugees?. article appearing in The Star, Friday, 1 
August, 2008.  
 166 
an issue that has been taken out of their hands and rests solely with the state. As 
one refugee declared, ?We didn?t come here on our own, the government sent us 
here and they must tell us what the next step is.?153 At the same time, refugees in 
the camps are ?terrified of being forced to reintegrate? and fear for their lives 
when that time comes154.  
 
In this case, the state has been restored to a significant presence and controlling 
force in society. The illegal actions of the rioters, actions which saw them 
confront and challenge the state, ultimately resulted in the state?s re-emergence as 
a powerful force and institution. It is, however, an institution with power over the 
exceptions, rather than the citizenry. In this way, the state and societal regulation 
is restored whilst active citizenry is maintained.  
 
As one refugee housed in a camp stated, 
 
?I?m tired of life. I just wait for God to say what I will do?I 
don?t know what?s coming for us. We don?t like staying here, 
but what?s the alternative??155 
 
They are thus in a position of complete passivity and abjectness, which is the 
complete antithesis of the empowered, active citizens inaugurated by the 
Constitution, the TRC process, the Bill of Responsibilities, and similar 
mechanisms. According to Castles and Davidson, citizenship is constructed as an 
empowering mechanism: to be a citizen is ?to act to empower oneself? (Castles 
and Davidson: 2000: p.26).  
 
In contrast, the refugees? continued presence in the country and ?enjoyment? of 
state protection was dependant on their being obedient and passive. This was 
made clear in a statement made by the Minister of Home Affairs, Nosiviwe 
                                                 
153
  Tolsi, N. ?There is still a crisis?. article appearing in the Mail and Guardian, 11 to 27 July, 
2008.  
154
  Joubert, P. ?No place called home?. article appearing in the Mail and Guardian, 11 to 27 July, 
2008. 
155
  ibid. 
 167 
Mapisa-Nqakula, who stated that the government would ?deport foreign migrants 
who were victims of xenophobic violence but had refused to register [for 
identification], as requested by her department?156. Here we see that the refugees? 
on-going protection and presence in the country depended on them obeying the 
state and complying with its demands and attempts at control. Any form of action 
or non-compliance would result in deportation.  
 
In one case, a coordinator of one of the camps described the Blue Waters camp in 
the Western Cape as being ?like a concentration camp?, and, in addition to 
exposing the terrible conditions within the camp, declared that ?The government 
is planning to deport most of the refugees still in the camps? and wanted her to 
?make things as unpleasant as possible ? if not impossible ? for the refugees to 
stay [t]here?157. Here again we have an illustration of how the camps restored the 
government to a position of supremacy in some sections of society. In this case, 
the state is again inaugurated as the determinant of the refugees? existence and 
presence in the country and comes to once again exercise the powers of the 
sovereign. This position of power and preeminence, it needs to be remembered, 
depends on the passivity of the refugees and their maintenance as bare life. This 
further emphasizes the necessity of bare life to the state and political community, 
as it is this passive community of exceptions, rather than the community of 
citizens which has been sustained and comes, in turn, to sustain the state.      
 
It is also interesting to note that when they were perceived as passive victims, 
people were described as ?refugees?, survivors, and ?victims? in the media. Once 
they began to act and show signs of agency and defiance of the state they were 
once again labelled ?aliens?, as is shown by the headline ?Trouble making aliens 
will be deported?158. Again we see that foreigners? presence in South Africa is 
only tolerated when they are passive subjects to be acted on by the state and 
citizenry. When this passive/active binary relationship is broken they are again 
                                                 
156
  Quintal, A. ?Trouble making aliens will be deported?. article appearing in The Star, Monday, 21 
July, 2008. 
157
  Joubert, P. ??Like a concentration camp??. article appearing in the Mail and Guardian, 26 
September to 2 October, 2008. 
158
  The Star, Monday, 21 July, 2008. 
 168 
unwanted, unwelcome non-humans in the eyes of the state as well as in the eyes 
of the media and public. This illustrates again that the political community 
depends on a powerless, bare exception in order to have substance. 
 
The weakness of foreigners in the camps was borne out by the story that emerged 
on the 9th of June 2008 . According to reports, a group of Somalis housed at the 
Soetwater camp near Cape Town, ?allegedly attempted a mass suicide? in an 
attempt to ?draw the world?s attention to their plight?.159 Here we see the bareness 
of life in the camps. The only leverage or substance those sheltered there had was 
their lives. They are thus in a position in which the line between life and death is 
all that distinguishes their existence and is all they have to assert themselves with. 
They have been removed from all active participation in political and social 
processes, and have only life or death to act with. They are consequently living-
 bare-life ? life that can be reduced to death at any time. This is a truly bare state, 
and represents their complete removal from the political community and presence 
within a state of exception.  
 
In this way, foreigners in the camps came to provide the referent or exception 
upon which citizenship requires in order to have any substance or significance. 
Returning to Schmitt, the norm depends on the exception. In this case, the norm of 
the empowered, active citizen was reinforced and made possible through the 
relegation of foreigners to bare life in the camps. For Agamben, concentration 
camps serve as the paradigm of modernity (Agamben: 1998). In the case of the 
displaced persons? camps this is confirmed, as these camps provide powerful 
paradigms for the politics of belonging and existence in South Africa at present. 
These camps reveal the stark realities of the contest over inclusion/exclusion that 
is played out and framed by citizenship and the state of exception today.    
 
 
 
 
                                                 
159
  Staff Reporters. ?Hoax claim in Somalis? suicide scare?. article appearing in The Star, Monday, 
9 June, 2008. 
 169 
Conclusion 
 
If the formation of active, empowered members of the political community is the 
pinnacle of citizenship, then the relegation of foreigners to passive victims or 
living-bare-life is a concrete means of exposing and re-enforcing the division 
between citizens and exceptions. This was a process that started with the state and 
has been carried to a startling conclusion by members of the public. It is important 
to situate the attacks in this framework and to regard them as part of a larger 
discourse and process of population production.  
 
Thus, one can argue that over-and-above material conditions and relative 
deprivation, the current wave of violence has a far more political and sinister 
objective. It is, in fact, a product and exercise in biopolitics, and as such is part of 
the production of a population and the establishment and re-enforcement of the 
boundaries between citizens and exceptions. What is at issue in the attacks is a 
question of existence and belonging, a question that is mediated through the state 
of exception, with disturbing consequences indeed.  
 
This conception of the state of exception and its role in producing populations 
offers important insights into our understanding of the attacks, as well as into the 
discourses and relations of power that made them possible. In situating the attacks 
within the politics of belonging framed and exercised by the state, the state of 
exception, biopolitics and governmentality it is possible to add complexity to the 
ways in which we understand them and the broader issues at work. In this case, 
Agamben provides a valuable, although still problematic and incomplete, 
framework for understanding the attacks and contests over citizenship that they 
were influenced by.     
 
 
 
 
 
 170 
Conclusion 
 
Through examination it has become apparent that a state of exception has come to 
frame and define immigration in South Africa today. This state of exception runs 
through immigration laws and policies themselves, is present in day-to-day police 
practices, within institutions designed to detain illegal immigrants, and has even 
worked its way into interactions and relationships between foreigners and local 
communities. From policies which ensure that the usual course of law and human 
rights do not apply to illegal immigrants, to un-checked police abuse, to death and 
violence in Lindela, through to mob violence that allows the distinction between 
citizens and outsiders to be enforced, we see that the state of exception in many 
ways defines the existence of immigrants in South Africa and their relationships 
with the state and local communities. It is thus an apt and powerful framework for 
understanding this most pressing and topical issue.  
 
At the same time, understanding immigration through the framework of the state 
of exception allows us to analyse another pressing, defining element of existence 
in South Africa. The theme that has run through this inquiry is Carl Schmitt?s 
notion of the norm depending on the exception. Thus, focus has been on the 
exception, but always with an eye on the norm that it is helping to give form to. 
Through examining the exception ? illegal immigrants ? and the manners in 
which they are produced and treated by the state, it has become possible to arrive 
and some understandings of the norm ? i.e. citizenship.  
 
It is possible to conclude, in a manner that Schmitt would approve of, that the 
norm that is citizenship depends on the exception of excluded, illegal, unprotected 
categories of people. Illegal immigrants provide this, and thus provide an 
exception or referent against which citizenship can be measured. The significance 
of this conclusion is that the ways in which we understand citizenship need to be 
re-examined. Far from being a universal good or an end in itself, citizenship needs 
to be understood too as an exclusionary concept, one that can only thrive on the 
production of an exclusion. As Councillor Nkosi reminded us, people in 
 171 
Alexandra were angry because ?There is no difference between citizens and non-
 citizens,? and were thus driven to kill so that this difference could be re-enforced. 
Here, citizenship became the distinction between life and death, and was 
reproduced and enforced through making death the consequence of exclusion. In 
this way, citizenship was given form through exclusion.  
 
This process of violent exclusion, however, is not something that belongs only to 
local communities. It starts from the state and its laws, and works its way down 
into the population. This is evident in the fact that illegal immigrants cannot 
receive health care, cannot receive social grants, and do not enjoy any degree of 
personal security or dignity. As Mangosuthu Buthelezi emphasised, social 
services ? the benefits of citizenship in post-Apartheid South Africa ? must be 
reserved for ?our people?. In so doing, ?our people? comes to have substance. The 
notion of ?our people?, of the deserving South African community, is made 
possible and shaped through the production or delineation of a community that 
cannot be ?our people? and that cannot receive the same treatment, be it from the 
state, its employees, or local communities themselves.     
 
Thus, the state too needs to be placed at the forefront of our understanding of 
citizenship, exclusion, and existence today. For, as has been shown, all of these 
features of life stem from and are shaped, to some degree, by the state. Citizenship 
is a fundamentally political relationship between individuals and the state, as well 
between broader communities and the state. Thus, the state, as it is able to 
determine the qualifications it deems requisite for inclusion as a citizen, 
determines the character of citizens themselves. These qualifications and 
distinctions are made through the state, and are made clear through its production 
of categories unfit for inclusion. We thus see that the state does not only 
determine what is to be the basis for exclusion, because, through doing so, the 
state determines the basis for inclusion too.  
 
State power encompasses, as has been argued, the ability to define and categorise 
people and communities and to create or mould subjects. One of the primary ways 
 172 
through which this is done is through producing excluded, exceptional categories 
of people, people who do not qualify for or are undeserving of inclusion in ?our 
people?, the community of citizens. At the same time, as the norm depends on the 
exception, the included, deserving category of people is also produced. This is 
done through the state and the privileging of certain qualities or characteristics 
that this entails. As has been shown, the norm of the South African citizen is 
dependant on the exception that is the illegal immigrant. Through excluding 
illegal immigrants, who are predominantly black, poor, and unskilled, the state is 
proving a template for the measure of the right population ? those who are 
disciplined, skilled or educated, ?legal?, and have complied with the state?s 
mechanisms of bureaucracy and control. 
 
In this way, the state is able to use citizenship not only as a boundary for 
exclusion, but as a means of producing what is to be included. Citizenship, then, 
needs to be understood as a mechanism of governmentality ? a mechanism 
through which populations are produced. At the same time, it has been shown that 
the state of exception too is a mechanism or technique of governmentality. It is an 
everyday form of rule and discipline, one that is written into law, is present on the 
streets and in institutions, and that shapes people?s subjectivities and is circulated 
on a day to day basis.  
 
Thus, the state of exception, in conjunction with citizenship and the law, serves to 
produce populations and subjects, not only through the exclusion it is used to 
entrench, but also through the inclusion that it defines and protects. The 
theoretical framework that is provided by the state of exception then, provides 
many useful and powerful ways through which citizenship, and by virtue of this 
existence itself, can be understood today.  
 
Agamben?s theory is, however, not without fault. The state is not the uniform, all-
 encompassing entity it appears as in his, and in Foucault?s, work. There are, as has 
been shown, instances in which people challenge or try and escape the definitions, 
categories, and subjectivities that the state produces for them. For, whilst the state 
 173 
is a dominant force in people?s lives today, it does not exist without challenges or 
hindrances. It is, rather, locked into a cycle in which it is challenged and then 
seeks to re-establish itself. The state of exception aids the state in this, and thus is 
vital in an understanding of the state?s response to illegal immigration, an act 
which, by its very nature, challenges and threatens the state. One thus requires a 
means of understanding this constant, everyday contest; the state of exception 
helps provide a framework for this.  
 
It is thus through the use of the theoretical perspectives that inform Agamben?s 
theory of the state of exception, that one is able to understand many of the issues 
that surround citizenship, immigration, and the state today. Thus, Agamben?s 
theory should be regarded as a useful contribution ? not an end point, it must be 
stated, but a useful contribution nonetheless ? to our understanding of all of these 
issues.   
 174 
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 187 
Appendix: Interview schedule 
 
Interview with Bishop Paul Verryn, conducted on 1 December, 2008. 
 
Interview with Constable Neria Malefetse, on 13 August, 2008. 
 
Interview with Councillor Sinah Gwebu, conducted on 6 August, 2008.  
 
Interview with Councillor Sizukela Nkosi, conducted on 6 August 2008. 
 
Interview with David Cote, conducted on 12 May 2008. 
 
Interview with Joyce Tlou, conducted on 11 July, 2008. 
 
Interview with Kaajal Ramjathan-Keogh, conducted on 31 March, 2008. 
 
Interview with Loren Landau, conducted on 19 May, 2008. 
 
Interview with Pastor, [real name withheld], conducted on 15 July, 2008.