Failure to prosecute rape cases perpetuates lack of faith in criminal justice system

A 14-year-old girl reported being raped in January 2020 by four perpetrators in North West. She was waiting with her mother in the queue at a local school in order to finalise the registration. She got tired and went home, and was attacked. 

Provincial police spokesperson Col Adele Myburg confirmed that a case had been opened but was later withdrawn. Explaining why, she said: “The case was withdrawn due to no prospect of a successful prosecution.This is another in a plethora of rape horror stories that have dominated the headlines in South Africa for decades. Shocking attacks are frequently followed by a failure to successfully prosecute anyone.”

The President’s commitment to a stronger criminal justice system with the rollout of sexual offences courts and specialised forensic units promises a ray of hope for survivors of gender-based violence. This promise was first made seven years ago when the Ministerial Advisory Task Team on the Adjudication of Sexual Offence Matters (MATTSO) released the Report on the Re-establishment of the Sexual Offences Courts, in 2013. 

MATTSO stated that the two main achievements of the initial Sexual Offences Courts were an increase in conviction rates and a decrease in turnaround time from the date of report to the police to the finalisation of the case. A complimentary service provided by these courts in the form of court preparation and support provided by NGOs was found to reduce further trauma to the victim and enable the witness to provide better evidence, thus improving their efficacy as witnesses for the state.

This report also led to one of the most important amendments to the Criminal Law (Sexual Offence and Related Matters) Amendment Act (“the Act”), being the insertion of a section which authorises the minister to designate certain courts to exclusively hear sexual offences matters, which was intended to create a survivor centred process.

Sexual offences courts are specialised courts in which survivors receive support services and cases are prosecuted by specialists in the field. These courts are theoretically being rolled out around the country but there has been no legislated framework for them, so the services they offer are not uniform. The requirements for a court to be declared a sexual offences court have been unclear.

The amendment to the Act remained in limbo for several years, together with the regulations that would give it detail. The Department of Justice has now confirmed that the amendment to the Act came into operation on 31 January 2020 and the regulations were to be gazetted by today, Friday 7 February.

What does this mean for survivors?

Each sexual offences court should offer three things. The first is specialised personnel. We know that trained specialist personnel, magistrates and prosecutors, are essential for limiting secondary trauma to survivors. The second is specialist infrastructure, such as separate waiting rooms for survivors. The third is specialist services, such as court supporters who provide support to survivors as they navigate the process.

What happened in North West is not uncommon. This perpetuates the lack of faith in the criminal justice system. We need the proper implementation of sexual offences courts to restore survivors’ confidence in the system, and to support their willingness to come forward. In this case the school says it will make sure the learner is safe and gets all the support she needs.

The department says it will visit the family to offer support and to counsel the teenager. However, the perpetrators continue to walk free. Without effective convictions, we will not persuade witnesses to come forward. DM