If only sexual offences courts hadn't gone away...
The Department of Justice announced on Tuesday that sexual offences courts are to be reintroduced to South Africa, eight years after the idea was largely discarded. It's a positive sign that the government is finally putting its money where its mouth is when it comes to sexual violence, and it ought to be applauded. Of course, that won't stop us bemoaning the lost years when such courts didn't exist properly - because one of the findings of the department's task team report on the issue has been how badly many courts have been equipped to deal with sexual offence cases up till now.
Sexual offences courts are back on the table, and if they are made to measure according to the Department of Justice (DOJ)'s very detailed task team report on the matter, they could represent a vast leap forward in the way the South African legal system processes cases of sexual violence.
As far back as 1993, the first sexual offence court was established in Wynberg, Cape Town. It was different to other regional courts. It had a dedicated social worker to provide counselling. Court functions were moved around to prevent the victim from coming into contact with the accused in the court building, as happened (and still happens) shockingly often. It had two prosecutors: one to guide, consult and undertake preparation while the other was in court. It had victim-friendly waiting rooms.
And it worked. The Wynberg court maintained a conviction rate of up to 80%. Despite this, it took until 1999 for a second court to be rolled out in Bloemfontein, although it didn't adhere to exactly the same model. Others followed in Grahamstown and Parow. It wasn't until 2005 that a general blueprint for the management of sexual offences courts was developed, but in that same year the Justice Department decided to halt the project. At that stage there were 74 of such courts up and running.
Why was a moratorium called on the sexual offences court project? In a dark irony, one reason was because they were essentially working too well. In May 2005, erstwhile Justice Minister Brigitte Mabandla testified to that respect in Parliament. The current task team's report notes that "the fact that the sexual offences courts were better resourced than other courts was seen as a serious violation of the constitutional right of other victims of crimes to equal protection and benefit of the law".
But there were other problems too. The budgetary resources the courts required were seen as unsustainable. There was a lack of adequate building space in some court buildings, sometimes requiring storerooms to be used as testimony rooms. Staff were sometimes not given specialised training, or counselling to deal with the effects of dealing with often horrific cases day-in, day-out. There was no coherent framework for oversight of the courts.
Since 2005, there have been a (dwindling) number of "dedicated" sexual offences courts, but they take other business on their court rolls. The gradual demise of the courts has been despite the fact that there was evidence that the concept really worked. By some estimates, conviction rates have dropped by as much as 20% since the closure of the courts. Special director of public prosecutions for sexual offences, Thoko Majokweni, admitted as much in 2011, saying that conviction rates had decreased because of the demise of the courts. Since their decline, Majokweni said at the time, "we are back to square one".
And square one, if you needed reminding, isn't a very good place to be when it comes to this issue. This April, the Shukumisa Campaign - a group of 28 organisations which work in the area of sexual offence prevention - made a submission to the Justice portfolio committee on the Amended Sexual Offences Act. The submission is a reminder that before the introduction of 2007's Sexual Offences Amendment Act, the stats for rape convictions were even worse than they are currently. In 2003, the submission notes, the conviction rate for rapes reported in Gauteng was just 4%. For a three-year period (between 2005 and 2007), at one rural police station in Mpumalanga, there was just one conviction for the rape of adult women. One.
For 2011/12, the conviction rate for all reported sexual offences - and there are, believe it or not, 59 - was at 6,98%. This isn't a very helpful figure, though, because it doesn't dis-aggregate for provinces or individual offence types. Research has shown rape conviction rates tend to be much lower than for other sexual offences, for instance.
Despite this shocking state of affairs, conditions in courts have remained for the large part ill-equipped to deal with sexual offence reports. The DOJ's task team report on the re-establishment of sexual offences courts, which was released to the media on Tuesday, paints a grim picture of the resources available in regional courts. Of the 577 regional courts that the task team audited, for instance, they found only 106 had CCTV, a separate testifying room and a waiting room for children.
Only 48 courts had separate toilets for children. Only 190 had some form of access to anatomical dolls, recognised worldwide as essential to help children give testimony as to sexual abuse. A total of 232 prosecutors, the task team found, didn't have access to a computer of their own.
Little wonder that the task team 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, the task team wrote, that "victims of sexual offences have special needs that often require specialised skills that can only be developed from dedicated court personnel operating at a specialised court fitted with specialised equipment that responds to such special needs".
That's an awful lot of "special". In practice, the task team resolved that what this meant is that sexual offences courts must have standard features like CCTV equipment (to enable victims to testify in camera); a special victim testimony room; and a private waiting room. Personnel-wise, each court should have a presiding officer; two prosecutors; an intermediary; an interpreter; a designated court clerk; a designated social worker; a legal aid practitioner; and an official to help with court preparation.
The task team's recommendations are extremely detailed. The report provides benchmarks for the height of chairs that should be used by children. It advises as to the quality of lighting and blinds in waiting rooms. It mandates the provision of a soft toy within easy reach of children waiting to give evidence - as distinct from the anatomical dolls, which must be available. (For these, even the size of genitalia is recommended.) It even advises as to colour scheme: "Currently, the departmental communication policy prescribes the use of 'blue' colour for all criminal matters, and in compliance with this policy, the task team recommends that the primary colours for the sexual offences courts must be blue and lime green".
At a press briefing on Tuesday, Justice Minister Jeff Radebe said that they were aiming to ensure that 22 courts would be up and running by the end of this year, with 57 courts equipped within three years. He also defended the previous demise of the courts, saying that government never took a firm decision to close them down, but that there were challenges in place which "did not necessarily involve government", including the concerns of magistrates.
So what's to say that things will be different this time? For one thing, there's now a coherent blueprint for the courts, their oversight and their budgeting. For another, there should now be greater support and training given to the staff at these courts to deal with the burden of persistent exposure to sexual offences cases.
But challenges will, of course, remain. Among some of those identified by the task team are language barriers; a poor understanding of LGTBI individuals and people with disabilities; a prevailing lack of space; and the "inevitable interdependencies" that accompany the processing of sexual offence cases. By this they mean that it's not enough to have a sexual offences court working brilliantly by itself, because it doesn't operate in isolation. The SAPS is needed to collect evidence. Department of Health workers are often necessary to collect DNA evidence and examine victims. Correctional Services needs to be functioning as it should to keep perpetrators in jail, and so on.
The budget for these courts is also going to be an interesting issue. At Tuesday's press briefing the figure being bandied around was around R20 million set aside at the moment for the establishment of the courts. But the task team's estimate of the costing is that a single court's establishment would cost R3,654,883 for year one of its existence, with the figure rising in subsequent years. The costing is, admittedly, based on a court with zero resources, whereas the task team has identified courts which are almost all the way there to be the first in line for modifications to become sexual offences courts.
The re-establishment of the courts is unequivocally good news, even if a lot else needs to happen in tandem with it. Shukumisa notes, for instance, that statistics on sex offence cases need to be properly collected and dis-aggregated. They also point out that budgeting for the courts should take into account the need to compensate NGOs which are currently subsiding DOJ services - such as by providing court assistance to victims - and not receiving any funding from the DOJ.
The announcement of the courts' reintroduction coincided with the news of a four-month-old baby girl raped on a farm in Ceres last weekend. Cape police commissioner Arno Lamoer said on Monday that the infant had had reconstructive surgery, but would remain in hospital "for a long time". The crime is a horrifying reminder of how far South Africa still has to go in fighting its sexual violence epidemic.
This column appeared in The Daily Maverick.