Opinionista Nthabi Pooe 13 December 2012

Fighting abuse: We need the courage to continue against all odds

The 16 Days of Activism Against Women and Child Abuse are a positive start. But unfortunately, increasing awareness of the problem of abuse doesn’t make it any safer for women and children to report abuse; nor does it make the systems in place to protect them any more effective. It is time we ensured that our country’s abuse victims were not so consistently failed by the system.

As we commemorate the end of the 16 Days of Activism Against Women and Child Abuse, it is important for us to evaluate whether the systems available for women and children to report cases of abuse are adequate to protect these vulnerable groups. Unfortunately, there is a short answer: they are not.

There is also a longer answer, which I will attempt to address below. To explain, the 16 Days campaign seeks to encourage victims to speak out against their abusers with the hope that our justice systems and other applicable disciplinary processes will deal with these cases effectively. Through this campaign, women are encouraged to report their abusers to the police, and children that are abused at school are encouraged to report the perpetrators to the relevant school authorities. This campaign seeks to educate South Africans about the negative impact of violence on women and children and to act against abuse.

I work with victims of abuse, and I must admit my disappointment with the manner in which the police and many government officials deal with cases of abuse, specifically cases of violence in schools. These cases are particularly complex because they involve a variety of stakeholders who should be working together to deal with the case effectively and efficiently while providing the necessary support for the victim. When cases of abuse are reported to the school official or the police, two processes need to be instituted. The first is the criminal investigation by the police for prosecution in court; the second is the Department investigation for a disciplinary hearing. Despite the severity of some of the cases we deal with, cases are not resolved with the necessary care. 

I urge you to think deeply about the following true story.

I first met Ntombi at the beginning of 2012, when a community-based organisation referred her to SECTION27.  Ntombi was 12 years old when her teacher threatened her at knifepoint, kidnapped her, drugged and raped her. The case was first reported to the police in three months before the case was reported to us. It was later also reported to the Department of Education (DoE) for investigation. 

In January 2012, by the time the case was referred to us, the police investigation had been closed because school officials refused to talk to the police and because Ntombi was not pregnant. The DoE investigation had also stopped without reason, and the investigating officer could not be traced even by the Department. Ntombi had reported the case to at least two teachers and the principal, but they too sought to influence her into dropping the case, because “the accused teacher has lawyers and she would never succeed”.

We began by trying to obtain a protection order for Ntombi and her family. This came as a result of intimidation by the accused teacher. The accused started by telling Ntombi in front of all her classmates that he was watching her; the teacher would also stare at Ntombi’s mother every time she went to the school and blocked her way on several occasions. The process of obtaining a protection order should ordinarily be simple enough to be done without lawyers, but it took six lawyers and legal arguments by an advocate for the protection order to be granted. This was due to the fact that a “relationship” between a learner and a teacher was not legally considered a “domestic relationship” and therefore a protection order under the Domestic Violence Act could not be obtained. After a full day’s argument by our counsel, the magistrate extended the definition of a domestic relationship to include that of a teacher-learner relationship. This was a small victory for Ntombi, but a big victory for young women learners across South Africa who – theoretically at least – now have greater protection from abuse by their teachers.

We then had to find out what had happened with the investigation by the DoE. The investigating officer could not be traced and therefore a new investigation was instituted by the department. Little Ntombi now had to give another statement to the new investigating officer because her initial statement could not be found. We also had to request that the accused teacher be placed on precautionary suspension while the investigation took place. This is a statutory obligation of the DoE which arises when charges are of a serious nature and/or there is a threat of inference with the investigation.   

The investigation was finally completed after a further five months, and a disciplinary hearing was set for the accused teacher. 

On the day of the hearing, to SECTION27’s surprise, the teacher was represented by the South African Democratic Teachers Union (SADTU). Then the GDE failed to call witnesses that would have given testimony in support of Ntombi. In addition, the department failed to lead crucial evidence that they had against the accused teacher and evidence that confirmed that she was raped. 

The worst part of the entire process was that while Ntombi gave her testimony through an intermediary, the camera broke down and without warning, the accused and everybody else attending the disciplinary hearing walked into the room where Ntombi was giving evidence to make sure that she was indeed giving the evidence. After seeing the accused teacher’s face, Ntombi could not continue giving evidence and was admitted to hospital the following day. 

But things continued to get worse for this little girl. The presiding officer in the disciplinary hearing found in favour of the accused teacher because Ntombi had not reported the matter immediately after it happened; this was done despite the fact that the law states that a negative inference cannot be drawn from the length it takes the complainant to report the case. She was also unable to answer some of the questions put to her after she had seen her teacher and that she cried and fell apart while giving her testimony. The presiding officer stated that the accused teacher was calm and collected during his testimony, making his version of events more probable. We have since requested the matter to be taken up on appeal, and made legal submission on certain aspects of the case; four months later, Ntombi is still awaiting the outcome of the appeal.

While all this was going on, we also began tracing the police investigation and met with the prosecutor to try to understand why the case had been closed. The prosecutor said that from the docket it was clear that the police investigating officer was reluctant to investigate the matter, which resulted in a poor investigation. He ordered that the investigation be continued thoroughly and assured Ntombi that a proper investigation would now be carried out. This did not happen. 

Since the re-opening of the case, Ntombi has had to give three statements to three different investigating officers; she had to undergo a second medical examination a year after the incident because the first report had gone missing along with the docket. The current investigating officer has been trying to convince Ntombi to withdraw the case. Due to the ongoing interruptions and the constant changes in the investigating officers, Ntombi’s docket is still in chaos. 

Ntombi and her family feel failed by the systems that are supposed to be in place to protect them. In all of these processes, Ntombi has had to tell her tragic story and re-experience the trauma more than ten times to different people. She has had to undergo two medical examinations because her docket was lost. She had to transfer to another school far from home because she did not feel safe at the school. Ntombi has had to face the accused teacher on several occasions which have left her completely traumatised. 

Despite all this, Ntombi and her parents continue to fight for the justice she deserves.

For campaigns such as the 16 Days of Activism Against Women and Child Abuse to meet their objectives, victims of abuse such as Ntombi and her family need to feel that the systems are in place to deal with these cases and that they work. They need to believe that reporting the case would lead to a proper investigation and the prosecution of the accused. They must not fear that the processes add to the family’s despair and trauma. 

Protecting women and children against violence and abuse is an agenda that needs to be carried out by all institutions, stakeholders and individuals. State institutions such as the police and government departments need to work together in their investigation and management of these cases to prevent what has happened to Ntombi, her family and probably hundreds of other girls in schools across our country. DM

* Nthabi Pooe is a Students for Law and Social Justice Fellow, SECTION27


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