We have reached another Women’s Month and still, rape and sexual offences are at alarming levels in the country and have been so for the past decade. The regulations relating to Sexual Offences Courts (SOC) await the go-ahead from Chief Justice Mogoeng Mogoeng. These regulations are part of ensuring that survivors do not experience secondary trauma when they have to testify. They were sent to the Office of the Chief Justice by the Department of Justice for approval months ago with a deadline of May 1. We have yet to receive approval.
In the 2017/2018 financial year, 40 035 rape cases were reported to the police, nearly 4 744 of these in the Western Cape. Those that reached trial were not all heard in a SOC, as courts of this nature are still needed in many communities.
Civil society organisations have appealed for years, calling for more SOCs across the country, and have done a lot to identify problem areas related to sexual violence. This includes denouncing under-reporting, low conviction rates and lack of funding dedicated to sexual violence survivors.
According to the Shukumisa Campaign, the first South African SOC was established in Wynberg in 1993 and remained the only one until 1999. That year, the Department of Justice and Constitutional Development stated the need to roll out SOCs nationally by 2003. Although this did not happen, in 2003, the National Prosecuting Authority (NPA) and the department did agree on a strategy on how the roll-out would be done. The NPA would be responsible for appointing assistants for survivors as well as case managers and court preparation officials. The department would facilitate the appointment of magistrates.
No victim-friendly courts
In 2005, the then minister of justice and constitutional development Brigitte Mabandla called for a halt on the establishment of specialised courts. She said specialised courts demanded additional resources and forced magistrates to specialise. Only in 2012 was this decision reversed, with the subsequent announcement in 2013 that specialised courts would be re-established. A total of 57 regional courts were identified for immediate upgrading into SOCs.
In the Western Cape, a SOC is desperately needed at the Khayelitsha Magistrate’s Court. In 2018, 444 sexual offence cases were opened in the three police stations in Khayelitsha. For a long time, rape survivors would have to walk past perpetrators when going into the region’s Magistrate’s Court. It was again civil society that intervened, leading to improvements to the infrastructure.
According to the department of justice and correctional services’ spokesperson Chrispin Phiri, the court is being made more victim-friendly through the installation of CCTV system for security, access control, separate waiting rooms, entertainment, kitchen and ablution facilities – survivors currently do not have separate toilets from perpetrators and other people who have come to court.
There are only three sexual offences courts in the Western Cape, most survivors rely on regional or magistrate’s courts to hear their cases. These courts are normally overburdened with other cases, making the justice process much longer.
According to Rape Crisis Cape Town Trust, in 2008/2009, “the crime statistics indicated that 69 197 sexual offences were reported to the police, of which 46 647 were rape. The dedicated SOCs heard just 5 300 of those sexual offences cases and achieved a 66.7% conviction rate.” At the time, it was estimated that only one in nine rape cases were reported to the police. A steady increase in conviction rates has been reported over the last decade, however, this is still not a reflection of a decrease in rape as it is believed that today, only one in 13 sexual offences are reported to the police.
No trust in the system
LAW FOR ALL managing director Advocate Jackie Nagtegaal writes, “Arrests are made in less than 50% of the reported cases. Less than 15% of accused are taken to trial and 5% of rapists who are tried are convicted. When it comes to sentencing, over 15% of convicted rapists get less than the mandatory sentence of 10 years.” These are just some of the reasons why people do not report sexual violence – the justice system does not work in their interest. Jen Thorpe writes that many who work in the field of violence suggest that this indicates a lack of trust in police and the justice system because survivors leave the criminal justice system after years, receiving no justice as perpetrators walk free.
Protecting survivors of sexual violence seems to have fallen largely onto civil society organisations. The very first gender summit to combat gender-based violence in December 2018, was primarily through the efforts of civil society.
In the 2019 State of the Nation Address, the president said that money would be allocated to Thuthuzela and Khuseleka Care Centres. He said that more would be done to ensure the better functioning of SOCs. However, it is not enough to promise people and fail to deliver – Thuthuzela Care Centres are reportedly in desperate financial need.
There is no description as fitting for our rape epidemic as Pumla Dineo Gqola’s book titled, Rape: A South African Nightmare. Sexual violence affects the most vulnerable groups in society. The lack of seriousness with which it is treated shows a disregard for these groups. For as long as there is no political will to handle sexual violence as the national crisis that it is, survivors will continue to suffer in silence. The high-profile Omotoso trial is an example of what SOCs seek to avoid – the line of questioning that brings about secondary trauma, among other things.
Given the statistics, we desperately need our respective departments including the department of women, youth and persons with disabilities, as well as SAPS and our justice system to assume accountability to the people they represent and serve by implementing serious measures to combat this burdening crisis.
Instead of the many special events and speeches we’ll no doubt witness during this month, we need to achieve tangible solutions and make South Africa a safer place for our girls and women.
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