Making strides in fighting for sexual offences courts

The Rape Survivors’ Justice Campaign was conceived and established in 2016. We have one aim: the planned and funded rollout of sexual offences courts as promised by the government.

This is a big ask and we envision that this long-term advocacy campaign will probably take at least ten years. Since our launch on Women’s Day in 2016 we have made great strides and progress and we will continue to build on this in the future.

Our campaign advocates for the national rollout of sexual offences courts to such an extent that all rape survivors will eventually have access to a specialised court. We believe that these courts should first be established in areas with high rates of reported sexual offences, which is one of the issues that we advocate for in the regulations and our engagement with the Department of Justice.

Locally, we have also chosen to specifically lobby for a sexual offences court to be established in Khayelitsha. Rape Crisis has an office in Khayelitsha and the police stations in the area consistently have some of the highest rates of reported sexual offences in the country without a specialist court to serve the community.

Here are some highlights of our achievements from the past two years:

August 2016: Launch of the Rape Survivors’ Justice Campaign. We made submissions to the High Level Panel on Key Legislation about the importance of having a legislative framework for sexual offences courts in South Africa.

November 2016: We gathered in front of the Khayelitsha Regional Court to demand that it be upgraded to a sexual offences court.

December 2016: We made oral submissions to the High Level Panel on Key Legislation about the importance of a legislative framework for sexual offences courts.

March 2017: We made written submissions to the Parliamentary Portfolio Committee on Justice and Correctional Services on the legislation for courts that deal exclusively with sexual offences.

May 2017: We made additional oral submissions to the Portfolio Committee regarding the exclusivity of sexual offences courts. We also engaged with Regional Court Presidents and the Deputy Minister of Justice to assist with the drafting of the sections of the Judicial Matters Amendment Bill 2016, that gives the Minister the power to establish these courts, including a definition of the courts.

September 2017: We Lobbied the Department of Justice to release the Regulations for sexual offences courts for public comment.

October 2017: We attended the National Forum on the Implementation of the Sexual Offences Act to lobby for the draft regulations to be released and to lobby the Deputy Minister of Justice for the establishment of a sexual offences court in Khayelitsha.

November 2017: Community activists gathered in front of the Khayelitsha Court and handed over a memorandum to the Deputy Minister of Justice to demand the upgrade to the Khayelitsha Court.

December 2017 to January 2018: The draft regulations were released for public comment. We made submissions on the regulations, specifically lobbying for a meeting with the relevant departments.

February 2018: We met with the Deputy Minister at the Khayelitsha Court to discuss proposed changes and upgrades.

March 2018: A meeting with the Departments of Justice, Police, Social Development, NPA and fellow Shukumisa Coalition members to lobby for the regulations to reflect attainable minimum standards as well as lobbying for specialist court support.

April 2018: We directly lobbied the Deputy Minister of Justice for the regulations to be finalised. We engaged with the drafters of the regulations regarding next steps and hosted a research panel discussion to highlight the successes and challenges of how courts deal with sexual offences.

May 2018: We submitted a report to the Deputy Minister setting out recommendations for the upgrades at the Khayelitsha Court.

July 2018: A meeting with the relevant Departments again to workshop the regulations. The main wins from this have been; the inclusion of court support in the regulations, the regulations will be a set of “minimum requirements” for sexual offences courts and the Department is tasked to come up with a list of minimum criteria for how to decide where to establish sexual offences courts.

September 2018: Consult with Rape Crisis’s court support team and coalition partners to on how the role of court support should be described in the regulations.

October 2018: Submit input to Department of Justice setting out the regulations relating to court support in sexual offences courts.

Initially the Rape Survivors’ Justice Campaign demanded that government rollout sexual offences courts in accordance with their own Blue Print set out in the MATTSO report[1]. However, through engagement with government decision makers in different departments as well as research done by academic institutions, we discovered that there was real concern that the model might very well be unattainable in the country’s current financial position. While the specialised personnel and services are key in reducing secondary trauma and ensuring that complainants continue to testify in a sexual

[1] Ministerial Advisory Task Team on the Adjudication of Sexual Offence Matters. The Report on the Re-Establishment of Sexual Offences Courts. 2013 offences case, the Blue Print also contains extensive and very costly infrastructural requirements. At most Regional Courts in the Country, these are simply not implementable.

We used the opportunity to lobby for the release of the Draft Regulations for Sexual Offences Courts, which will give detailed instructions on achievable requirements. While the regulations are still in draft form, we are pushing for them to contain minimum requirements for services, personnel and infrastructure at sexual offences courts with one goal: to reduce secondary trauma suffered by survivors. This way the objectives of sexual offences courts can be achieved within resource constraints.

The Departments of Justice and Constitutional Development as well as the National Prosecuting Authority includes the rollout of sexual offences courts in their Departments’ Annual Performance Plans (APP) and also report on the achievements of these targets at the end of their financial year. The rollout of sexual offences courts includes a staffing component as well as an infrastructure component and therefore the APPs will speak to these issues.

Hopefully by the end of the year, the regulations will be finalised and then Section 55A of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007 can come into operation.

 

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Does Rape Matter?

If the words of magistrates and judges are anything to go by, we would be able to grade rape crimes into categories- from not so bad to worst.

As if the act of rape itself was not traumatic enough, survivors still have to listen to remarks made during trial, that is, if their case makes it to court.

But who monitors what judges and magistrates say in their courtrooms? No one, really.

While it isn’t possible to monitor every single rape judgment handed down (and I wish I personally could), we can, instead, choose the people who are appointed to the bench, very carefully.

Next month, the Judicial Service Commission will conduct interviews on potential candidates, who may be deemed as fit for the bench.

Candidates are often asked about their experience, past judgments, how long they served as an acting judge for, and what their experience is with civil cases.

Based on previous JSC sittings, rape judgments delivered by these candidates often slip through the cracks.

This year, the case study for “what not to do when presiding over a rape case” is acting Judge Meerchand Maharaj.

Maharaj started off as a prosecutor and then moved up the ranks to become a magistrate. In his impressive CV, he lists being trained in sexual offences.

In his own words, in a rape appeal matter, the acting judge writes: “Rape is undeniably a despicable crime. It is humiliating and degrading and constitutes a brutal invasion of the privacy and dignity of the person…”

But when dealing with an appeal against sentence in a case where a nine-year-old child was raped, Maharaj decides that this is not the most serious rape he has presided over.

He writes, “the learned magistrate overemphasised the seriousness of the crime…”

In considering the substantial and compelling circumstances, he notes, “There is no evidence of serious injury to the complainant or her emotional state.”

Maharaj’s remarks are echoed in many other judgments.

During the 2015 JSC interviews, another shortlisted candidate, Judge Francis Legodi, made similar remarks in a judgment.

In a case where a ten-year-old was raped, Judge Legodi said that compared to other victims, the child was “less affected and traumatised” and that her performance at school was “not seriously affected”. The man’s sentence was changed from life imprisonment to ten years each for two rapes.

Legodi in another rape judgment said: “In coming to the sentence I don’t think this rape was one of the worst. Minimum force was used, ten years imprisonment in my view is a bit severe.”

In 2016, shortlisted candidate Judge Christiaan van der Merwe also expressed similar sentiments of lack of injury in his judgment. “There was no serious or lasting mental injury to the complainant,” he wrote. He concluded that life imprisonment was “disproportionate and unjust” for the rapist due to these circumstances.

These are just a few examples of remarks made by judges about the nature of the rape, “not being the worst”, nor the injuries “too severe”. This may be a result of presiding officers who have become desensitised to the issue of rape because they often preside over many of these cases.

But that’s no excuse. Judges owe it to the survivors and to the justice system to ensure that they are sensitive and strive for impartiality.

The courts are said to be a microcosm of society. Is this really what we think of rape crimes? That some are more serious than others? The act of rape is horrific enough. Full stop. No further explanation is needed.

screen-shot-2017-06-19-at-1-30-56-pm

The Justice Lady is a writer who wants to give a voice to the voiceless. She is an advocate for the rights of rape survivors. She keeps a close eye on the courts, the media and the role they play in shaping the manner in which society sees rape.

A Letter to the President 2.0

Dear President Cyril Ramaphosa,

You have failed South African women.

Let me refresh your memory for the reasons why appointing Bathabile Dlamini to represent women is a slap in the face.

As president of the ANC Womens Legaue, Dlamini is no stranger to the struggles facing South African women. Let’s take the scourge of gender based violence, well of course she is familiar with those incidents. It happens often with people in her party and she justifies it.

All we need is a flash back to last year when, former Deputy Minister of higher education, Mduduzi Manana was caught on camera assaulting a women. The honourable Dlamini’s response, “Don’t start from him. If we want to say everyone who occupies a senior position in government we must know his track record because there are people who are worse than him….”

Dlamini does not believe in empowering or supporting women. Why do I say this you ask? During the run up to the ANC presidential election, a number of female candidates emerged as nominees, including Nkhosizana- Dlamini Zuma, Lindiwe Sisulu and Baleka Mbete. Yet, Dlamini and her Womens League only endorsed Dlamini- Zuma for the Presidency, leaving the other candidates out in the cold. This despite expressing in public that she is in support of women’s emancipation? Guess the minister lied, again.

She also believes that she is first and foremost a cadre of the ANC before she is a woman, representing the Womens League. She has made this point crystal clear numerous times in media interviews and recently during the ANC NEC.

“We have to express our disappointment as members of the ANC because we are members of the ANC before we are members of the ANCWL. The Womens League is at the centre of bringing hope to the women of South Africa and we think that we are able to drive the struggle for women’s emancipation. We also want to take this opportunity and say we fought a good fight and the struggle for the emancipation for women must continue,” Dlamini said.

In other words, Dlamini believes, at all times the ANC comes first, while the needs or concerns of women, take a back seat.

One other thing, burnt into our memory is when Dlamini shunned protesters at the #RememberKhwezi silent demonstration in 2016. This sought to remind our then President Jacob Zuma that we remember Fezekile Kuzwayo, the women he was accused of raping and other survivors.

Dlamini blamed the EFF for the demonstration. She said: “We are not going to allow reactionaries and tyranists who are supported by clandestine forces, who pay them for any action to embarrass our growing democracy and the ruling party.”

“It was clearly choreographed and the way they handled the whole thing is not professional. They were supposed to ask the president to deal with the issue and apologise and then ask him to continue. We are trivialising the issues of gender-based violence. It [the protest] was about the president of the country. The president went to court,” she said.

Mr President, South African woman have barely recovered from being governed by President Jacob Zuma. A man who was accused of raping the daughter of a childhood friend, while his party vilified the woman who was brave enough to speak out. Through all of this he continued to climb his way to the top while her life was destroyed.

We cannot tolerate a woman who has a proven track record of leaving women in the lurch.

Let’s take a moment to yet again mourn the disregard for women’s rights and welcome the new minister of Women in the presidency, Bathabile Dlamini.

Yours sincerely,

The Justice Lady

 

Screen Shot 2017-06-19 at 1.30.56 PMThe Justice Lady is a writer who wants to give a voice to the voiceless. She is an advocate for the rights of rape survivors. She keeps a close eye on the courts, the media and the role they play in shaping the manner in which society sees rape.

16 Days of Noise

By Jeanne Bodenstein

“The problem of rape and sexual abuse is an ongoing crisis in our country. South Africa has one of the highest rates of rape in the world, as well as considerable socio-economic disparities, which means that rape survivors get very different kinds of support when reporting a crime.” During 16 Days of Activism for No Violence Against Women and Children this message is screamed from the virtual rooftops of social media, pronounced in almost every news bulletin, is the topic of a high percentage of media interviews and the centre of a spree of events and campaigns. Government departments have never before hosted this many workshops and suddenly all Parliamentarians have an opinion on this issue.

Handing over memorandum to John Jeffereys

RSJC handing over the memorandum to Deputy Minister of Justice, John Jeffery, outside Khayelitsha Magistrates’ Court. Photo: Lina Lechlech.

So what happens on day 17?

The Rape Survivors’ Justice Campaign asked this very question. Because we know that advocacy must be focused, continuous and strategic in order to achieve real change. The change we work towards is a criminal justice system that includes specialised courts with specialised personnel, infrastructure and services for prosecuting rape cases. We want to ensure that perpetrators are brought to justice while victims are supported. We know that a strong criminal justice system is needed to address the high rates of rape and sexual violence in South Africa by restoring the faith that communities should have that perpetrators will be brought to justice. Therefore, during 16 Days of Activism, we do exactly the same as we do on the other 349 days of the year: we hold the government accountable for rolling out sexual offences courts.

On 25 November 2017, we launched the Rape Survivors’ Justice Campaign webpage. This provides a platform to showcase our work. Last week, we hosted a workshop in Khayelitsha to raise awareness regarding the survivor’s pathway through the criminal justice system. This highlighted the need for a sexual offences court in Khayelitsha to address the very real gaps in the system as well as the high rape rate in this community. We invited participants of the workshop to join us at a public demonstration on 5 December 2017 outside the court.

At this public demonstration in front of Khayelitsha Magistrates’ Court we demand that a sexual offences court be established in Khayelitsha and we handed over a memorandum to this effect to the Deputy Minister of Justice, John Jeffery. In his acceptance speech, the Minister confirmed that Khayelitsha Magistrates’ Court will be upgraded through a collaborative process early next year. This is long-lasting change. Real, systemic change aimed at addressing the problem of rape.

We believe that sexual offences courts will make a real difference in how rape cases are dealt with by ensuring that survivors receive support, that there is a speedy turnaround time for rape cases and ensuring higher conviction rates. So when the government workshops, Parliamentary speeches and abundance of media interviews come to an end on 10 December 2017, we will continue to hold government accountable for the rollout of specialised courts with specialised personnel, infrastructure and services.

Please see our webpage at: https://rapecrisis.org.za/justice-campaign/

 

Jeanne

Jeanne Bodenstein is the coordinator of the Rape Survivors’ Justice Campaign for the Rape Crisis Cape Town Trust.