First published in the Daily Maverick 168 weekly newspaper.

Between December 2020 and 3 March 2021, 10 South African men were sentenced to life imprisonment for rape.

Those men removed from society include a 37-year-old uncle who raped his 10-year-old niece, a 44-year-old man who raped his 14-year-old stepdaughter, a man who raped a nine-year-old and an 11-year-old after luring them into his home, as well as two serial rapists who kidnapped their victims, held them hostage and raped them.

Although this might seem like a drop in the ocean in a country that lives with a seemingly permanent “second plague” of gender-based violence (GBV), the sentences by courts across the country are a moment for pause and faint optimism.

The application of these harsh minimum sentences is an indication that the judiciary is beginning to drive the government’s commitment to addressing GBV as set out by the National Strategic Plan on Gender-Based Violence and Femicide 2020-2030, published in 2020.

Alison Tilley, co-ordinator of Judges Matter, a campaign that aims to improve civil society scrutiny of the judiciary and judicial appointments, said there had been a notable consistency in the proper application of minimum sentences in GBV cases.

Reviewing the decisions or judgments made by candidates nominated for appointment by the judiciary provides Judges Matter with a “broad snapshot” of what judges are saying or how they approach the law.

And whereas some rulings by judges and magistrates in relation to GBV matters were still “shocking”, a consistent pattern of proper application was becoming evident.

Kathleen Dey, a consultant for Rape Crisis and a former director of the organisation, said the life sentences meted out to rapists and sexual abusers sent a strong message to society. She echoed Tilley’s view that the application of minimum sentences for rape and sexual assault was being driven by the judiciary. But, added Dey, it was crucial to bear in mind that the National Prosecuting Authority (NPA) too “worked very hard to get those convictions”.

Tilley said the National Strategic Plan on GBV and Femicide contained a set of components and pillars to do with sexual violence that had resulted in “an unusual collaboration between different parts of government and civil society to make courts better”.

One of the plan’s calls is for a “strengthened capacity within the criminal justice system to address all impunity, effectively respond to femicide and facilitate justice for GBV survivors”. It also envisages a “victim-centred and survivor-focused” system of integrated care and support.

The NPA’s Sexual Offences and Community Affairs (SOCA) Unit has led the establishment of Thuthuzela Care Centres (TCCs), one-stop facilities that were introduced in 2006. Since then 51 TCCs have been established, mostly in urban centres. And though this is a woefully inadequate number, it is a start.

“If you are lucky enough to live near a TCC you can circumvent the South African Police Service [SAPS] completely. The TCCs are a first-line health intervention rather than a criminal one,” said Tilley.

Reports of rape, sexual and domestic violence by women who lived near TCC centres were on the increase, whereas reports to SAPS were decreasing, she added, which pointed to the success of this intervention aimed at limiting any secondary victimisation.

TCCs were equipped with rape kits and access to trauma counselling from an NGO or civil society, thus potentially offering complainants a humane and caring entry point into the criminal justice system.

“If you want to report the matter, then the SAPS get involved. Survivors receive psychosocial support and will deal with a prosecutor from the sexual offences court,” added Tilley.

SOCA was established in 1999 with a mandate to “establish an efficient and effective unit” to improve the conviction rate of sexual offences cases and to develop the skills of “all roleplayers in the multidisciplinary prosecution of sexual offences”.

Tilley said the first-line medical intervention in GBV matters could easily be replicated in areas far from bigger cities.

“We have all sorts in our back pocket and it does not have to cost a lot. If you have a good forensic nurse at a clinic, half the battle is won,” said Tilley.

In December 2020 the High Court Eastern Cape Division Bhisho sentenced the 29-year-old Sibusiso Woji to life imprisonment for raping a 41-year-old woman three times and also for the rape of a 19-year-old girl whom he had abducted and kept prisoner in his home.

In that instance prosecutor Nocwaka Blorweni-Tokota said: “I worked with a dedicated detective, Constable Hlekani from Peddie Family Violence, Child Protection and Sexual Offences, who worked tirelessly and ensured that the accused is brought to book.”

She said that with the help of Court Preparation Officer (CPO) Phelisa Matinise, who assisted victims with compiling convincing victim-impact statements, “I managed to convince the court to impose the sentences as prescribed by the [Criminal Law Amendment Act] 105 of 1997”.

In another matter in the first week of March this year, in the Verulam Regional Court, a 37-year-old man was sentenced to life for the rape of his 10-year-old niece. Here prosecutor Ishara Sewnarayan handed in a victim-impact statement compiled by the child and facilitated by CPO Bongiwe Qwabe. The child’s grandmother had taken her to a TCC at the Mahatma Gandhi Memorial Hospital, where she received post-trauma services.

Dey said Rape Crisis had CPOs working at several courts in Cape Town, including Parow, Goodwood, Wynberg, Khayelitsha and Cape Town Central, and that this had had a significant impact on the experiences of survivors in the criminal justice system.

“The CPOs are there to help survivors deal with the process down to asking magistrates, prosecutors and court officials to hold complainants in mind. This might be to ask bystanders to leave the court and protect the survivor in the process.”

Court officers had found that survivors and complainants wanted “respect and to be treated kindly. They must feel like they were heard. This often brings a sense of justice, regardless of the sentence handed down.”

In instances where communities have taken the law into their own hands to deal with rapists, survivors have expressed horror at this.

“Many do not want more violence. They want a solution,” said Dey. “For us we don’t measure the NPA by convictions and sentences, we measure secondary trauma.” She said although there were still many “holes in the system, in some instances it does work”.

Veteran GBV researcher Lisa Vetten said convictions were the outcome of “a system” and that there was still much “fallout” because of systemic weaknesses in the criminal justice system for GBV survivors. Sentencing, she added, “was the last place to look”.

Government’s ability to read statistics was poor and, although the application of minimum sentences might send a message, “the biggest deterrent would be the likelihood of getting caught”.

Vetten said that patterns of violence and GBV in South Africa had changed since the 1990s, the most violent period in South Africa, and statistics had indicated a decline.

But, she added, in 2012 the statistics began to show a different pattern in that young men were increasingly becoming victims of violence and that mortality rates for men in the 20-to-29 age group indicated that they too were victims of GBV. This exploded view demands that South Africans understand that toxic masculinity, violence and rape are a threat to society as a whole.

“What is happening to young men that is playing itself out in violence?” Vetten asked. “Past trauma is not enough to explain this. Something new is happening.”

Given Sigauqwe, spokesperson for Sonke Gender Justice, said that anecdotally the organisation had observed “some shift in men’s attitudes [towards GBV]. There are more voices of men speaking out. There have been a couple of marches and demonstrations in court cases supporting victims of sexual violence and calling for accountability. But more still needs to be done. You still have men protecting or justifying perpetrators.”

The National Strategic Plan noted that “an additional feature of sexual abuse in South Africa is the age of victims reporting to police, with a study reporting that almost half (46%) of sexual offence complainants are children”.

Daily reports of sexual violence attested to “the normalcy of GBV across settings, mainly perpetrated by those who are supposed to protect the public”.

An Independent Police Investigative Directorate report highlighted an “increase of rape by police officers and [a] 230% increase [in] sexual abuse cases perpetrated by teachers in the last five years”.

“Gender-based violence has a profound and wide-ranging detrimental impact”, with a cost study in 2015 estimating that gender-based violence and femicide “cost SA between R24- and R42-billion annually. But the true impact is severely underestimated, as additional social costs that compromise sexual and reproductive health, mental health, social well-being, productivity, mobility and capacity of survivors to live healthy and fulfilling lives are not fully considered.” DM168

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.