There is no single day in South Africa without some form of a media report on gender-based violence and femicide (GBVF). You can count one, two, three, four media reports on GBVF, and others including serial killers preying on women. The GBVF scourge simply does not want to go away.

There was a point at which I convinced myself that the Gender-based Violence and Femicide National Strategic Plan (GBVF-NSP), developed by the Interim Gender-Based Violence and Femicide Steering Committee (IGBVF-SC) marked a turning point for the country. In the foreword to the GBVF-NSP, President Cyril Ramaphosa succinctly noted that “the unacceptably high levels of gender-based violence and femicide in South Africa are a blight on our national conscience, and a betrayal of our constitutional order for which so many fought, and for which so many gave their lives”.  

You just need to read the GBVF-NSP and the South African Police Service statistics report for their harrowing accounts of GBVF to know that the South African Constitution is a dream betrayed.   

I do not want to sound alarmist, portraying that South Africa is a lawless country. The justice sector still has a role to play in ending GBVF. With regard to the role that can be played by the courts, I would like to focus my talking points entirely on a speech by Justice Mandisa Maya, President of the Supreme Court of Appeal, titled “Judicial and Legal Responses to Gender-Based Violence and Femicide” at the Gender Violence and Femicide Summit held in Pretoria on 1 November 2018.

In her speech, Justice Maya said that “many laudable strides have been taken in the legal sphere to address the scourge of gender-based violence and femicide and the social consequences associated with it in our society. But those strides have simply not been up to the challenge.”

I had to sit back and reflect when the president of the Supreme Court of Appeal acknowledges that the legal sphere or the legal sector needs to do more. Justice Maya spoke at length on and highlighted the strides made in South Africa towards combating GBVF. In particular, she spoke of the jurisprudence developed by the South African courts “to offer a gender-sensitive and sociopolitical approach to cases and interpretation of legal and other relevant instruments”.

I agree with Justice Maya that “the responsibility of ensuring that those responsible for committing gender-based crimes are brought to account rests on the criminal justice system”. And that various role players in our criminal justice system – the police, prosecution and courts – have a constitutional duty to discharge without fail the duty to protect women and children from GBV.  

As Justice Maya said, “The Constitutional Court in S v Baloyi & others (CCT29/99) [1999] ZACC 19; 2000 (1) BCLR 86; 2000 (2) SA 425 (CC) (3 December 1999) highlighted that the Constitution imposes a direct obligation on the State to protect the rights of all persons to be free from domestic violence.”

She continued: “The courts must be constantly reminded that as the final arbiters in matters involving gender-based violence, they have the power to protect abused women and to effectively punish the offenders, and in so doing send a clear message to perpetrators that such conduct will not be condoned.”

Judge Mageza also found in the accused’s favour that “there was no gratuitous violence, although threats were made to the child not to disclose the rapes. Presumably, because there was no physical injury to the child, other than the rapes, [and this] was held to be a mitigating factor.” [SCA, para:13].

Admittedly, there are many cases that our courts pronounced themselves on in a manner that helps to combat GBVF without denying the accused the justice he or she deserved. But there are also always one or two cases that shame our courts as vanguards of justice. These are one or two cases too many. 

For example, the judge in the lower court in the case of The Director of Public Prosecutions v, Grahamstown v TM (131/2019) [2020] ZASCA 05 (12 March 2020) completely misdirected himself in the application of the minimum sentencing guidelines under the Criminal Law Amendment Act 105 of 1997. The learned judge imposed a 22-year sentence on the accused convicted of the repeated rape of a child aged nine, instead of life imprisonment, according to the provisions of section 51(1) of the act. 

More troublesome, and of concern regarding the sensitivity of our judicial officials in GBVF cases and/or their ability to adjudicate such cases, is that Judge AJ Mageza’s court ruled that “the offence was completely opportunistic and occurred because her aunt would be drunk and seemingly unable to decipher what was going on within the house with the child”.

Judge Mageza considered the accused’s educational background and alcohol use as negating the seriousness of the sexual assault. It’s eye-popping that the judge said that “the rapes were not the worst kind of rapes” [SCA, para: 9]. He also took into account the fact that the 31-year-old rapist left school in Grade 8. The judge sought to justify the leniency of the sentence with a spurious assertion that GBV activists would consider a mockery of the seriousness of the sexual assault.

Judge Mageza also found in the accused’s favour that “there was no gratuitous violence, although threats were made to the child not to disclose the rapes. Presumably, because there was no physical injury to the child, other than the rapes, [and this] was held to be a mitigating factor.” [SCA, para:13].

With the intervention of Justice JA Nicholls, sanity on the Bench finally prevailed. Judge Nicholls reminded us that “our country is facing a pandemic of sexual violence against women and children, and courts cannot ignore this fact”. Judge Nicholls set aside the high court’s 22 years’ imprisonment term and sentenced the accused to life imprisonment. 

The scourge of GBVF in South Africa does not allow for the apparent wilful blindness to the devastating impact sexual assault had on the victims and their families by the courts. The vulnerability of the victim and the irreversible harm done in the case of The Director of Public Prosecutions v, Grahamstown v TM was there for everyone to see. As observed by the Supreme Court of Appeal, without any need for distillation:

“There can be no greater crime, in my view, than to deprive a child of her innocence, especially a vulnerable child such as the complainant here. This heinous act was not perpetrated by a stranger, but by a person who said he considered the child to be his daughter. For a child to be violated in the sanctity of the only place she can call home is the most egregious breach of trust. Can she ever feel safe again? Apart from the fears, the nightmares, the diminished social and scholastic functioning exhibited at the time the report was compiled, there will be long-term psychological consequences… In short, this young girl’s life has been irreversibly damaged.” [Para:14]

The nine principles that underpin the implementation of the GBVF-NSP Principle 1, read with principles 4 and 5 and Pillar 3, appeared appealing to me as a legal scholar: Principle 1 calls for a multisectoral approach to combating GBVF. South African judicial officers (judges and magistrates) must play their part in this multisectoral approach. The courts, in light of Principle 4, must be visionary, gender-responsive and transformative when dealing with GBVF cases. Further, they must fully embrace a “human rights-based, victim-centred, survivor-focused approach” as required under Principle 5.

Before you fall off your chair with my reference to principles 4 and 5, may I caution that it is not to be taken as given that our judges and magistrates are transformative and always embrace a “human rights-based, victim-centred, survivor-focused approach” in their decision-making in GBVF cases.

We need standards and norms for judging GBVF cases

According to Justice Maya, “While there has been a marked ideological shift in the ways judges adjudicate matters relating to gender-based violence and femicide in recent times… the fate of these victims should not be left to the off chance that the individual judges hearing their cases will be attuned to the sensitivities. There should be a formalisation and standardisation of these norms so that it is incumbent on the courts to pay particular attention to the treatment of victims in these cases.” [p.10]

Reflecting on Justice Maya’s suggestions, I look to the European Union and the Council of Europe’s Training Manual for Judges and Prosecutors on Ensuring Women’s Access to Justice. The manual, produced in 2017, is an outcome of a project titled Improving Women’s Access to Justice in the Eastern Partnership Countries that sought, among other things, to introduce capacity building and development programmes “to ensure that the justice chain is gender-responsive, with a focus on training for legal practitioners”.

Among the strategies suggested in the manual is the call that “prosecutors and judges must follow a victim-centred approach, which may be a different approach from that used in other criminal proceedings”; that the criminal justice system must send a strong message to the perpetrators that violence is not acceptable “regardless of where it takes place; and that perpetrators will be held accountable under the law”, implementing a coordinated and multiagency approach.

In particular, it states that judges and magistrates be required to manage the risks of recidivism, escalation of violence as identified and evaluated by the police and the prosecutions.

Lastly, the manual acknowledges that the enactment of laws and the adoption of policies to address GBVF are not enough. Central to the efficiency and effectiveness of these normative instruments, judges, magistrates and prosecutors should receive specialised training on specific forms of violence against women.

Some of the strategies espoused in the manual are also covered in the GBVF-NSP. Pillar 3.1 of the GBVF-NSP requires, for example, that “all GBV survivors can access efficient and sensitive criminal justice that is quick, accessible, responsive and gender-inclusive”.

To this end, the strategy calls for “strengthened capacity within the criminal justice system to address all impunity, effectively respond to femicide and facilitate justice for GBV survivors” (Pillar 3.2) and for the introduction of legislative reforms as part of dealing with GBVF (Pillar 3.3).

Judges’ own diversity and gender sensitivity, and the depth of their academic pedigree, for example, should not be taken for granted, otherwise we will have many scandalous decisions, like that in the case of The Director of Public Prosecutions v, Grahamstown v TM, where the intersection of the accused’s literacy, gender and socioeconomic background nearly insulated him from substantive retribution had the judgment of Judge Mageza gone unchallenged.

How Judge Mageza framed the mitigating circumstances shows a questionable understanding of the effects of rape and how the actions of the accused fell on the continuum of GBVF.  As others might put it, such decisions can make victims feel publicly raped all over again by the legal profession inside the court.

In conclusion, and as Judge Maya quoted former Justice Edwin Cameron’s 1990 article Judicial Accountability in South Africa (South African Journal on Human Rights, vol. 6, No. 2 (1990), p. 258): “Judges do not enter public office as ideological virgins. They ascend the Bench with built-in and often strongly held sets of values, preconceptions, opinions and prejudices. These are invariably expressed in the decisions they give, constituting ‘inarticulate premises’ in the process of judicial reasoning.” DM