Jade Tess Wiener says that education, both institutional and cultural, needs to become a priority
VIOLENCE AGAINST WOMEN - PART I: CASE STUDIES AND LEGAL MECHANISMS
18 June 2018
Recent months have shown an increase in sexually violent crimes against women. This 2-part brief series considers whether the law and society are working effectually to protect women from violence. Part I focuses on alarming recent case studies and the existing legal mechanisms to address this crisis and challenge.
South Africa has a high prevalence of violent offences against women and recently there has been a spate of women killed by their partners. Part 1 of this brief considers a number of these reported incidents and considers the redress and protection available. Part 2 will provide an evaluation of the legal mechanisms. This assessment reveals the need to focus on gender education and the breaking-down of harmful social norms and stereotypes. It is recommended that a systemic shift in processes and social norms needs to take place in order to protect our women.
ALARMING RECENT CASE STUDIES
Karabo Mokoene, age 22, was gruesomely murdered by her partner Sandile Mantsoe who after murdering her, burnt her body beyond recognition. Whilst the 32-year prison sentence handed-down will not bring Karabo back to her loved ones, it is a step in the right direction in allowing her family time to heal and gain closure. Throughout his trial, Mantsoe denied having killed Karabo and claimed she had committed suicide. With no remorse shown or responsibility taken for his actions, Acting Judge Peet Johnson called Mantsoe the “devil in disguise”.
Zolile Khumalo, a first-year student was shot dead in the presence of her roommate at the Mangosuthu University of Technology - allegedly by her ex-boyfriend. Zolile had been avoiding Thabani Mzolo after breaking up with him two weeks prior. He is believed to have shot her in the face and the arm.
Lindiwe Sibiya, a 31-year-old mother of two was allegedly killed by her husband Prince Khumalo. He is said to have stabbed her 17 times while the couple was away “celebrating” their anniversary. This fatal stabbing has been described as “murder most foul”. Khumalo has been released on R5000 bail.
Nompumelelo Mthembu, mother of three, died in hospital from burn wounds. A tyre was forced around her neck, she was doused with petrol and then set alight by the father of her children. Her ex-lover was out on bail after being charged with rape after he allegedly shoved a knobkerrie into her vagina in March.
These are just some cases in point plucked from a spate of femicide incidents. While femicide refers to the killing of a woman by her intimate partner, other acts of sexual and domestic violence and offences against women in South Africa must also be brought to light.
The Victims of Crime Survey for 2016/17 (VOCS) shows a rise in sexual offences (an increase of individuals who experienced sexual offence rose from 0.08% in 2015/2016 to 0.19% in 2016/17). In terms of murder VOCS reveals that female-headed households were victims of murder representing 0,16 per cent of all female-headed households. This percentage of victimised households is more than twice the corresponding percentage in the case of male-headed households. Sexual Offences are defined as to include sexual assault, rape and domestic sexual abuse as well as grabbing, touching someone's private parts or sexually assaulting someone. The survey reveals that about 37,2% of individuals who experienced assault were victimised by a known community member. VOCS shows that an estimated 70 813 or 1 in 500 individuals, mostly women, experienced a sexual offence in 2016/17. Sexual victimization for women was more than twice the rate for men. While these statistics are undoubtedly high, in reality, they are probably even higher. As a caveat, the survey records that “specific categories of crime, such as sexual offences (including rape), were generally under-reported in this survey and it should not be regarded as an accurate source of sexual offences data. This is primarily due to the sensitive nature of these offences as well as in some cases the possible presence of the perpetrator in the household being interviewed.” It is interesting to note that the South African Police Service (SAPS) Crime Statistics record a decrease in sexual offences crime from 59815 in 2015/2016 to 49660 in 2016/2017, a decrease of 4,3%. To this end, the statistics seem redundant: just one of these horrific incidents is one too many.
As Bongani Bingwa, 702’s Breakfast Show host pleads, “Is the law listening? Is the legal system? The courts, government, parliament? Are we?”
EXISTING LEGAL MECHANISMS
The Domestic Violence Act seeks to protect women from domestic violence by creating obligations on law enforcement bodies to protect victims as far as possible. This Act recognises that domestic violence is a serious crime against our society and extends the definition of domestic violence to include not only married women and their children, but also unmarried women who are involved in relationships or living with their partners, people in same-sex relationships, mothers and their sons, and other people who share a living space. The legislation seems progressive in its drafting. However the implementation of acquiring State assistance whether in the form of a protection order or finding alternative accommodation or medical assistance is disappointing. Lack of training and knowledge on the part of the SAPS in terms of fulfilling its duties to victims and resource constraintshave been cited as reasons for the ineffectiveness of this Act.
Similarly, the Criminal Law (Sexual offences and related Matters) Amendment Act (SORMA) broadly characterises sexual offences and extends the narrowly constructed pre-1997 common law definition and lists offences including rape, sexual assault, sexual exploitation, sexual harassment, child pornography, incest, bestiality, and necrophilia. Further included are instances of compelled sexual acts, where either a third person is coerced to perform a sexual act, or an individual is coerced to perform a sexual act on themselves. The definition of “sexual acts” includes penetrative and non-penetrative sexual contact. This means any form of penetration of a person’s body by another person, object, or animal; or any physical contact or directed sexual behaviour towards an individual, by another person or persons: verbally, physically, or by means of an intermediary, or any other means. Again, this statutory protection is worthless if redress for the victim is unattainable.
Last year the Constitutional Court heard a confirmation case of the High Court ruling that required that the Criminal Procedure Act (CPA) be amended to abolish the prescription period of 20 years for sexual offences and other forms of gender-based violence. Subsequent to the hearing of this Levenstein case, Michael Masutha, Minister of Justice and Correctional Services delivered his 2018/2019 budget speech citing that the CPA would need to be reviewed for, amongst other things, the prescribed period within which the State can prosecute persons for allegations of particular categories of crime. The South Gauteng High Court in South Africa declared this 20-year prescription period inconsistent with the Constitution and invalid to the extent that it bars the right to institute a prosecution for all sexual offences, other than those listed (most notably, rape and compelled rape) after the lapse of a period of twenty years from the time when the offence was committed. It was argued that the level of trauma experienced by victims of sexual abuse is not determined by whether the abuse involved penetration but depends on a multitude of other factors. The complainants maintain that perception of the seriousness of crime is subjective and determining one sexual crime to be more “serious” than another is dependent upon preconceived patriarchal notions about sexual offences which are flawed.Communications Minister Nomvula Mokonyane said at a post-Cabinet media briefing on Thursday 24 May 2018, that the amendments to the CPA to allow for charges related to sex crimes to be instituted after a lapse of 20 years have been approved by cabinet. The Constitutional Court handed down judgment in the Levenstein case on 14 May 2018. In a unanimous judgment penned by Zondi, J the Court held that the effect of section 18 is two-fold: (i) it over-emphasises the significance of the nature of the offence, at the expense of the harm it causes to survivors thereof, and therefore fails to serve as a tool to protect and advance their interests;and (ii) it penalises even a complainant whose delay was caused by or due to his or her inability to act by preventing him or her from pursuing a charge even if he or she may have a reasonable explanation for the delay. The Court further held that section 18 undermines the state’s efforts to comply with international obligations, which impose a duty on the state to prohibit all gender-based discrimination. The Court confirmed the High Court’s order that section 18 is irrational and arbitrary, and therefore unconstitutional, insofar as it does not afford the survivors of sexual assault other than rape or compelled rape the right to pursue a charge, after the lapse of 20 years from the time the offence was committed. Importantly, the declaration of invalidity is retrospective to 27 April 1994.
In Minister Masutha’s budget speech, it was pronounced that there are currently 75 Sexual Offences Courts. He undertook to rollout an additional 14 of these courts in deserving areas to extend their reach and has further vowed to put interventions in place to ensure their optimal functioning.
Sexual Offences Courts were established to provide survivor-centred justice with specialised services, specialised infrastructure and specialised personnel. In 2013 Department of Justice and Constitutional Development’s Ministerial Advisory Task Team on the Adjudication of Sexual Offences Matters (MATTSO) recommended the re-establishment of Sexual Offences Courts which were scrapped in or around 2008. MATTSO made an unequivocal finding that South Africa still needs Sexual Offences Courts, as a matter of urgency, to improve the performance of our courts in managing cases of sexual offences. The truth is victims of sexual offences have special needs that often require specialized skills that can only be developed from dedicated court personnel operating at a specialized court fitted with specialized equipment that responds to such special needs.
FCS units are Family Violence, Child Protection and Sexual Offence units stationed at various SAPS that are specialised to deal with the reporting of a sexual offence as well as in offering assistance and providing information to the victim. A recent report from the Commission for Gender Equalityhas alarmingly revealed that only 1 in 6.5 SAPS stations have such FCS units and that these units are severely under-resourced. A replyto a Democratic Alliance parliamentary question has exposed chronic shortages of rape kits and DNA collection kits in FSC units across the country.These deficiencies have been dubbed as a serious nationwide police mismanagement crisis in the fight against gender violence. Cases cannot be adequately reported and victims cannot be given adequate services with such inefficiencies.
The above specific examples are just some of the below-par initiatives undertaken by government. A consideration of the work undertaken by non-profit organisations such as Sonke Gender Justice and Lawyers Against Abuse and others must also be taken into account in considering whether South Africa is doing enough to protect our women. Paul Kariuki, the Programmes Manager for the Democracy Development Program, considers the role of civil society in ending violence against women, girls and children. For Kariuki, the role of these civil society organisations can be summarised as multi-fold.
First, these organisations are holding the government to account in enforcing its laws, policies and interventions in prohibiting all forms of violence.
Second, civil society should ensure that national legislation meets the requirements of international agreements that aim to put an end to violence against women, girls and children, such as the agreements drafted by the United Nations Commission on the Status of Women.
Third, these organisations should be at the forefront of educating women, girls, and children about their rights. These capacity building initiatives must include boys and men to ensure that cultural norms that perpetuate and engender discrimination are addressed. Awareness raising campaigns and institutional and legal reforms by governments around the world can also promote a culture of equality.
Fourth, ensure that accurate, reliable and meaningful data on violence against women, girls and children is collected. This data must be collected timeously and promptly. There is an urgent need for civil society organisations to enhance their own data collection, analysis, dissemination and utilisation of synthesised data to inform decision making.
Fifth, by partnering with other local, national and international agencies it is possible to build a critical mass of knowledge to interpret trends across global regions. Thus, global strategies would be informed by experiences and actions across the world.
The critical role civil society organisations play can fundamentally impact the performance of government as well as the mores of local and global society.
These recent accounts of gross violence and abuse against women in South Africa is chilling. “Too often, survivors are stifled by fear of their abusers and the possible responses from their communities if they disclose that they had been sexually assaulted…. They are threatened and shamed into silence. These characteristics of sexual violence often make it feel and seem impossible for victims to report what happened to friends and loved ones – let alone state officials.” We see that spheres of government have undertaken legislative, judicial and procedural reforms to address the need to make prosecution easier for the State and the laying of charges easier for the victim. This brief highlights that beyond developing the law, sensitising law enforcement officials and making sexual violence a policy and legislative priority, deep-rooted perceptions and norms need to be re-taught and re-learnt. Part II of this brief series will discuss and recommend possible transformative redress.
 Tebogo Monama “Murder most foul: Husband claims wife killed herself after heated argument” available at https://www.iol.co.za/news/south-africa/gauteng/murder-most-foul-husband-claims-wife-killed-herself-after-heated-argument-14997649 accessed on 04/06/18.
 Bongani Mthehwa “Woman necklaced – alleged killer was out on bail for rape” available at https://www.timeslive.co.za/news/south-africa/2018-05-10-woman-necklaced--alleged-killer-was-out-on-bail-for-rape/ accessed on 04/06/18.
 The Victims of Crime Survey is an annual nation-wide survey conducted by Statistics South Africa to capture the perceptions and attitudes of South Africans about crime. VOCS also tracks crime trends of reported and unreported crimes, as well as the circumstances of these crimes from the victims’ point of view.
Heidi Mogstad, Dominique Dryding and Olivia Fiorotto “Policing the private: Social barriers to the effective policing of domestic violence” available athttp://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1991-38772016000200002 accessed on 05/06/18.
 “Parliament, the Independent Complaints Directorate and the Auditor-General have all noted that none of these obligations is well adhered to by the police, with many stations failing to meet the standards set by the Domestic Violence Act and National Instructions.” Lisa Vetten “Domestic violence in South Africa” available at https://issafrica.s3.amazonaws.com/site/uploads/PolBrief71.pdf accessed on 04/06/18.
 “While one cannot doubt the intentions of its drafters or those of the legislature, it is impossible to give complete effect to these noble intentions in a tardy system that is poorly resourced, overburdened and desperately in need of training.” K Naidoo “Justice at a Snail’s Pace”: The Implementation of The Domestic Violence Act (Act 116 Of 1998) At The Johannesburg Family Court available at http://uir.unisa.ac.za/bitstream/handle/10500/23390/ActaCriminologicaArticle1.pdf?sequence=1 accessed on 04/06/18.
Linda Ensor “Cabinet approves amendment to charges relating to sex crimes” available at https://www.businesslive.co.za/bd/national/2018-05-24-cabinet-approves-amendment-to-charges-relating-to-sex-crimes/ accessed on 29/05/18.
 Sonke is a South African-based non-profit organisation working throughout Africa. They believe women and men, girls and boys can work together to resist patriarchy, advocate for gender justice and achieve gender transformation.Website available at http://genderjustice.org.za/ accessed on 22/05/18.
Lawyers against Abuse (LvA) is a non-profit organisation that provides free legal and psychosocial support services to victims of gender-based violence, including sexual violence, domestic violence, and child abuse. LvA also works to facilitate structural change through strategic engagement with state actors and the communities in which they serve. Website available at https://www.lva.org.za/ accessed on 22/05/18.
Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others at para 56.
VIOLENCE AGAINST WOMEN - PART II: EVALUATION AND RECOMMENDATIONS
Recent months have shown an increase in sexually violent crimes against women. This 2-part brief series considers whether the law and society are working effectually to protect women from violence. Part II focuses on the effectiveness of legal mechanisms and social education initiatives that serve to address and eradicate this systemic form of abuse.
South Africa has a high prevalence of violent offences against women and recently there has been a spate of women killed by their partners. Part 1 of this brief considered a number of these reported incidents and evaluate the redress and protection available. Part 2 will provide an evaluation of the legal mechanisms. This assessment reveals the need to focus on gender education and the breaking-down of harmful social norms and stereotypes. It is recommended that a systemic shift in processes and social norms needs to take place in order to protect our women.
EVALUATION AND RECOMMENDATIONS
The following critiques of the status quo aim to bring to light possible areas where improvements by government and civil society can be made. Recommendations postulate that more can be done to assist victims, take action against offenders and promote gender-rights education.
1) Bail too easy and conviction rates too low
The horrific case of NompumeleloMthembu, mentioned earlier, could have been avoided if her offender not been released on bail. This case exemplifies how easy alleged offenders get bail and are released back into society without any redress or intervention. The purpose of bail is not to punish the alleged offender, its purpose is rather to act as a financial guarantee that they will appear before the Court on the day on which their matter is to commence. However, that said, in practice, alleged offenders are released on bail more than once and often, for new commissions of the same or similar crimes for which they were released on bail in the first place. Thus, those against whom the offence was committed are subject to the risk that their attacker may strike again. The law is not taking into account the protection required for these victims. Speaking at a memorial lecture of the late Karabo Mokoena at the Soweto Theatre, Police Minister BhekiCele reiterated the sentiment that perpetrators should not escape the full might of the law and that crimes against women should be a schedule 6 offence, making it harder for perpetrators to succeed in their bail applications.
“About 150 women report being raped to the police in South Africa daily. Fewer than 30 of the cases will be prosecuted, and no more than 10 will result in a conviction. This translates into an overall conviction rate of 4% - 8% of reported cases.” Professor Dee Smyth unpacks these statistics and looks at factors that inform these results. Smyth considers the withdrawal of a complaint, either due to the fact that the victim has reconciled with the perpetrator, because the victim is despondent in assisting the authorities with information that may assist in the official in linking up the facts of the case with legal elements required by the statutory definition of the crime or simply the inadequacies of the SAPS system.
Smyth’s findings reveal that there is no clear reason for the low conviction rate. A combination of the law enforcement officials being unhelpful, unsympathetic, misogynistic, on the one-hand, and the victims being recalcitrant, uncooperative and deceitful on the other, lies at the heart of understanding this complicated situation. Nonetheless, a clear disconnect exists between the attempt of the law to assist victims and prevent against attacks and reality.
2) Collaboration between various institutions
Ensuring that the applicable institutions involved in victim assistance collaborate and communicate effectively is essential in providing meaningful action against perpetrators. The prosecution and conviction of SandileMantsoe has been lauded by the South African Police Service’s national commissioner, General Khehla John Sitole as being an example of the successful close cooperation between the Gauteng FCS unit and the National Prosecuting Authority (NPA). Effective and efficient collaboration and each institution taking a stand against sexual offence crimes would likely assist in ensuring that a guilty perpetrator faces the full might of the law. Creating this united front to protect victims and taking a full-frontal stand against abuse serves as a warning to potential perpetrators that the law and society will not tolerate such violence.
It is hoped that the swift and stern precedent set by Mantsoe’s sentence will serve as a deterrent to potential perpetrators as well as a critical denouncement of gender-based violence in turn resulting in long-term eradication.
3) Male privilege and consent education
Pierre De Vos has recently written about the power problem in which men enjoy unearned privileges because society is structured in ways that privilege men vis-a-vie women. Recently, it has been reported that Danny Jordaan (President of the South African Football Association) falsely smeared the reputation of Jennifer Fergusonafter she accused him of rape and that MduduziManana (ANC Parliamentarian) bribed his domestic worker, Christine Wiro, to withdraw the assault charges laid against him. These men exemplify what Colleen Clemens has characterised as “toxic masculinity”; a narrow and repressive description of manhood, designating manhood as defined by violence, sex, status and aggression. It’s the cultural ideal of manliness, where strength is everything while emotions are a weakness.
In South Africa, men, as a group, enjoy a relative privilege over women, as a group. Due to perceived superior physical strength or entrenched patriarchal social and religious practices, De Vos postulates that certain men will try to assert their desired dominance over those who they dislike or have displeased them in some way. In the cases of Jordaan and Manana, their positions of power (based on social and economic superiority) afford them dominance and entitlement to try and silence their accusers.
This patriarchal preference has been embedded in our law. The “cautionary rule” which treated evidence of a complainant in a sexual assault case with caution was based on the irrational and dangerous assumption that women are likely to falsely accuse men who sexually assault them. While the 1998 case of S v Jackson saw the formal abolition of this rule, it is widely feared that the rule may live on informally, enforced by sexist court officials.Further, section 227 of the CPA formally allowed evidence of sexual history of the complainant to be admitted as evidence, while the sexual history of the accused was never raised. This provision seems to find its history in the 19th Century English courts based on the perception that a decent woman would not engage in sexual activity outside of marriage. The amended provision now only allows such evidence to be led with leave sought and granted by the court. However, despite this revision, the unrestricted nature of the provision could allow for the admission of irrelevant but damaging evidence and consequently prejudice victims. To guard against this, the legislature should have specified that the exception only applied to sexual history adduced by the accused in so far as it was relevant to contradict the evidence introduced by the prosecution. We see therefore that while the above legal protections should be welcomed, the legislation can be limiting if it is not coupled with appropriate social reform and education.
On the point of education, “Consent Classes” for young boys in Nairobi, Kenya has proven to be very successful in reforming entrenched gender stereotypes, misogyny and sexism. These classes teach boys to respect girls and women and undo entrenched social patriarchal privileges. No Means No Worldwide began to run pilot programmes in rural Kenya (in 2009) and Malawi (in 2015) and have reached around 180 000 boys and girls. The classes teach the meaning of consent, self-defence and explores positive masculinity. In Kenya, it is reported that there has been an average of a 51% decrease in incidents of rape and that the percentage of boys who intervened when witnessing an incident of physical or sexual assault is 74%.Further, the decrease in pregnancy related school dropouts among Nairobi adolescents is recorded to be at 46%. This socially educative intervention is providing real, meaningful and tangible redress in raising children who are empowered and have a real understanding of gender equality. It is hoped that these children will grow-up and raise their children with such knowledge and create a self-sustainable stream of sensitivity. An expansion of and support for projects like this is critical in undoing the systemic gender power dynamics in South African society.
Part 1 of this brief series revealed that parliament has undertaken legislative reforms to address the need to make prosecution easier for the State and the laying of charges easier for the victim. The brief highlighted that beyond sensitising law enforcement officials and making sexual violence a policy and legislative priority, deep-rooted perceptions and norms need to be re-taught and re-learnt. Part II highlights that in order to achieve meaningful redress for victims of sexual offences a systemic overhaul of processes and mindsets is required. Education, both institutional and cultural, needs to become a priority in order to combat the scourge of violence and sexual assault against our women.
By Jade Tess Weiner, Researcher, Helen Suzman Foundation.
 Schedule 6 offences are the extremely serious offences and if one is charged with such an offence, the burden of proof will rest to prove to court that exceptional circumstances exist which in the interest of justice that permit release.
S v Jackson (35/97)  ZASCA 13; 1998 (4) BCLR 424 (SCA);  2 All SA 267 (A).
 The formal abolition does not mean that evidence of a complainant in a sexual offences matter cannot be treated with circumspect, the caution can simply not be on the grounds of “the nature of the offence”. Therefore, evidence in these cases can be treated with caution on account of other considerations.
 J Temkin “Rape and the Legal Process” Oxford University Press 1987.
 PJ Schwikkard 2008 “Getting Somewhere Slowly – The Revision of a Few Evidence Rules” in Lillian Artz and Dee Smythe Should We Consent? Rape Law Reform in South Africa 1 ed page 94.
 Section 227(1) of the CPA is now overtly gender neutral and section 227(2) indicates that historical sexual evidence ‘other than evidence relating to sexual experience or conduct in respect of the offence being tried’ may not be led or raised in cross-examination, except with leave of the court or unless historical sexual evidence has been introduced by the prosecution.
PJ Schwikkard 2008 “Getting Somewhere Slowly – The Revision of a Few Evidence Rules” in Lillian Artz and Dee Smythe Should We Consent? Rape Law Reform in South Africa 1 ed page 96.
 Jennifer Keller, Benjamin O. Mboya, Jake Sinclair, Oscar W. Githua, MunyaeMulinge, Lou Bergholz, Lee Paiva, Neville H. Golden and Cynthia Kapphahn “A 6-Week School Curriculum Improves Boys’ Attitudes and Behaviors Related to Gender- Based Violence in Kenya” available at https://static1.squarespace.com/static/586da1dcff7c50a814a5fdd4/t/58c0ce47e58c62c4d3ab1730/1489030729935/J+Interpers+Violence-2015-Keller-0886260515586367+%283%29+%283%29+%281%29.pdf accessed on 06/06/18.