Justice & Constitutional Development Strategic Plan 2013: input by stakeholders

Meeting report

Shukumisa Campaign submission on Justice & Constitutional Development Strategic Plan 2013
Ms Lisa Vetten, a representative of Shukumisa, remarked on Sukumisa’s concern about the extent to which the political campaign against sexual offences did not match the financial commitment in the budget. While Shukumisa understood that the government had other priorities, it was the opinion that the scourge of sexual violence and offences in South Africa also deserved prioritizing if it must be combated. Shukumisa was also concerned about the seeming stagnation in terms of policy development on sexual offences and there was a need to urgently address the development of policy on sexual offences. The performance statistics on conviction rates were dismal; In Gauteng only 4% conviction rates were obtained in 2003. In one police station in Mpumalanga only 0.8% (one out of 120 charges) conviction rates were obtained for sexual offences committed against adult women between 2005 – 2007 and only 4.1% conviction rates for sexual offences against children between 2005 – 2007. According to the statistics by National Prosecuting Authority (NPA), the conviction rates nationally for all sexual offences were as follows: 4.5% between 2007 and 2008; 5% between 2008 and 2009; 6.98% between 2011 and 2012. Generally, prevalence and performance statistics were opaque and there was a questionable incoherence across government departments with regards to the statistics. Shukumisa strongly believed there was an urgent need to develop the Policy on the Justice Footprint and for statistics to be publicly available.

Ms Samantha Waterhouse, a representative of Shukumisa, continued the submission with a call from Shukumisa on the need to prioritise sexual offences because of the particularly and profoundly traumatic nature of these offences, the overwhelming failure of justice for so many complainants and the fact that sexual offences victims arguably required more protection than victims of theft. There were significant policy gaps on sexual offences and without policy it was impossible to plan or budget effectively. It was the opinion of Shukumisa that the strategies as outlined by the Department of Justice and Constitutional Development (the Department) in its Strategic Plan did not effectively address sexual offences. Sexual offences strategies should be visible throughout the plan. Shukumisa noted that there was no disaggregation of budgets in the budget vote of the Department- there were no properly outlined spending on sexual offences and the proposed re launch of the Sexual Offences Courts. The budget of the NPA did not clearly outline from which line items spending on sexual offences came. There was only budgetary provision for specialised prosecutions and it remained to be determined what had been allocated to national prosecutions of sexual offences. It had also become necessary to question whether the budget allocation for sexual offences resources reflected the proportion of sexual offences cases in the system. It was worrisome that only two people were employed to work on sexual offences in the Department’s Vulnerable Groups Directorate - this was grossly insufficient.

To address these issues, Shuumisa put forward some proposals:
▪ The prioritisation of sexual offences matters on reducing case backlogs and the prioritisation of employment of prosecutors for sexual offences, as well as urgently addressing the Human Resources Strategy in the NPA.
▪ The budget of the Department needed to clearly outline the responsible party for paying for Court Preparation Officers and from which budget this was to be paid.
▪ Infrastructure costs for Sexual Offences Courts needed to be addressed including spatial aspects as well as equipment.
▪ The duplication of the National Register of Sexual Offenders was a reflection of the incoherence in government strategies and this needed to be addressed and both registers consolidated.

Shukumisa had carried out its own findings on the state of existing Courts on their handling of Sexual Offences and its findings were as follows: Of the 28 courts monitored (five Courts in Gauteng, four Courts in Western Cape, 11 Courts in Limpopo, Seven Courts in Eastern Cape and one Court in KZN), it was observed that: only 64% of the Courts had witness waiting rooms, only 88% had CCTV installations (not all were functional), only 36% of the Courts had room for Non-Governmental Organisations (NGOs) that helped with the preparation of the cases and support of victims, only 56% of the Courts had Court Preparation Officers, and of the 15 courts which claimed 'specialised' status only five were wholly so.

Ms Vetten continued the submission with a brief examination of the Thuthuzela Care Centres (TCCs). Although the TCC was first established in 2000 at GF Jooste Hospital, Manenberg, it was of concern that although a blueprint for the TCC apparently existed, there was no formal policy evident in the public domain. Information regarding availability of psycho-social services in TCCs was ambiguous. Shukumisa welcomed the budget increase to the TCCs but noted that none of this was allocated towards psycho-social services provided by NGOs; a minimum of 11 NGOs had been identified which worked in TCCs. Funding was only available to few of the NGOs which assisted the TCCs from the Department of Social Development and other international donors. A lot of the NGOs were beginning to withdraw their services (e.g. Lifeline, Childline) from TCCs because of a lack of funding and more had indicated that they were to follow suit. Provision of services to victims of sexual offences without psycho-social support cannot claim to be victim-centred. There was need for policy generally applicable to TCCs and specifically on the provision of psycho-social services and who bore the costs, as well as costs for other hidden subsidisation of services which NGOs provided to the Department. On the proposed re-launch of the Sexual Offences Courts, Shukumisa noted that there was an absence of policy on the Sexual Offences Courts since its introduction in 1993 and this needed to be addressed. Furthermore, what was required was improved prosecution of sexual offences generally, not just the introduction of Sexual Offences Courts. Civil Society (NGOs in particular) provided a range of essential services including Counselling, Supporting healthcare and Court preparation. However, Civil Society was not viewed as stakeholders in the NPA strategy; the Department referred to Civil Society as stakeholders but did not follow through. It was the view of Shukumisa that Civil Society was delivering services and covering costs of the Department and either the Department or DSD must be responsible for reimbursing these costs.

Ms Waterhouse concluded the submission by highlighting Shukumisa’s concerns on proper oversight. The Sexual Offences Courts re-introduction strategy had not had the benefit of public or civil society input, yet it was being implemented already. To effectively monitor sexual offences, more disaggregated information was essential. In this light, Shukumisa proposed that the Committee schedule time to examine the status of the various policy and training documents stipulated in Sections 62, 65 and 66 of the Sexual Offences Act. Public and Parliament engagement was crucial to the re-introduction of the Sexual Offences Courts. It was nearing the end of the Fourth Parliament, and Shukumisa was concerned regarding a loss of institutional memory in the change. Hence it was important that the proposed engagement took place before the end of the final session of the Fourth Parliament.

The Chairperson thanked Shukumisa for its insightful submission and invited Members to further deliberation on the submission.

Discussion
Ms D Schӓfer (DA) remarked that the Committee was aware of the challenges of the statistics provided by the NPA on sexual offences and had taken it up with the NPA in previous engagements. Hopefully these would be addressed in the current Annual Report and Strategic Plan of the NPA. On the case management system, the Committee was also following up on this and the Department had provided the Committee with full details on the challenges it faced.

Ms Schӓfer remarked that the Committee would question the Department when it appeared before the Committee on the lack of detail in its budget plans on the reintroduction of the Sexual Offences Courts.

Ms Samantha Waterhouse responded that the costs related to the re-establishment of the Sexual Offences Courts were not enormous. The major costs related to the appointment of two prosecutors per courts.

Ms Schӓfer remarked that the introduction of policies on sexual offences was not a guarantee for improved efforts in combating sexual crimes; the answer was to ensure properly detailed plans were set out by the Department and followed through.

Ms Lisa Vetten responded that while the point was taken, the introduction of policy ensured that responsible parties were held to account.

Ms Schӓfer remarked that it was important the Committee also engaged with the Department on the reintroduction of the Sexual Offences Courts.

Ms Schӓfer asked if Shukumisa had better statistics on the number of incidents, reported cases and convictions of sexual offences.

Ms Waterhouse replied that obtaining statistics was a lot more difficult for NGOs as they did not possess the adequate machinery to get the required information on a national scale; government departments were best placed to do this. The questions that begged answers was whether the information made available by government departments was the actual information and whether the government was willing to consider the true picture of the rape scourge in South Africa.

Ms Schӓfer questioned if Shukumisa agreed that specialization was more important for prosecutors and police officers than it was for Magistrates. Should only specific Magistrates be assigned to sexual offences cases?

Mr J Jeffery (ANC) in response stated that not all Magistrates were suited to handle sexual offences; empathy was a major consideration for judges handling this type of cases. Another model that could be considered was the establishment of Circuit Courts - akin to the model of the High Courts - which travelled to rural areas over a period of time and adjudicate on sexual offences in those areas. Further, the NPA had an informal mediation mechanism which it applied in certain cases, although this was yet to be regularised by law. Was there a case for monitored informal mediation in sexual offences, particularly where the victim and accused had a pre-existing relationship and there was a higher likelihood of withdrawal of the case, because of a relationship of dependency of the victim on the accused?

Ms Waterhouse added that not every Magistrate could handle cases of sexual offences. Certain basic threshold requirements must exist for Magistrates working on this kind of cases.

Ms Vetten in addition stated that while consideration of informal mediation was a possible alternative, the process needed to be closely monitored and strict guidelines instituted on where and when it is used.

Ms Waterhouse said that if informal mediation was to be considered for sexual offences, then it became all the more essential to ensure the prosecutors employed were persons who cared and were properly skilled. The right quality of prosecutors needed to be addressed before consideration of Alternative Dispute Resolution processes for sexual offences.

Ms Schӓfer asked how often it was observed that prosecutors had not carried out their duties especially about allowing the granting of bail for repeat sexual offenders.

Ms Vetten responded that statistics had indicated that while only 30% of sexual offenders were awarded bail in Gauteng, in Mpumalanga 80% of offenders were granted bail. The higher percentage for granting of bail in rural areas could be attributed to a lack of infrastructure and the practicality thereof.

Mr Jeffery added that it would be useful to have a mechanism to report cases where police officers and prosecutors had failed to effectively carry out their duties.

Ms Waterhouse responded that the capacity within civil society and NGOs and the fact that some of their services were offered within the courts, limited their ability to critique officers who did not effectively carry out their duties. Further, aggravating these officers through critiques made working with them difficult for NGOs and in turn impacted on the victims.

Mr Jeffery suggested that anonymous complaint mechanisms be utilized and members of the public be encouraged to complain where they were affected. Reports to Parliament Committees could also be utilized.

Mr S Swart (ACDP) noted with concern the statistics prevalent in the media about the underreporting of sexual offences; recent statistics reflected that only one in 10 sexual offences cases were reported. He asked for comments from Shukumisa on this.

Mr Swart noted that from the submission it was clear that NGOs were in fact subsidising the Department’s services and it was essential that they be reimbursed for the services they provided, particularly in the light of the global financial down turn and the inaccessibility of funds to these NGOs.

Ms Vetten responded that the argument by the Department was that its mandate did not allow it to fund NGOs; this needed to be addressed. The Department of Social Development (DSD) could however pay for these services but it had very restrictive criteria for funding NGOs. It was strongly believed that a larger part of the unspent and returned allocation of the DSD could be applied to this purpose.

Ms C Pilane-Majake (ANC) responded that the Department had indicated that it funded advice officers. This was an avenue worth exploring by NGOs seeking funding from the Department.

Mr Jeffery noted that there was a need for proper evaluation of the Sexual Offences Act.

Mr Jeffery asked whether Shukumisa believed the TCCs had been situated in the correct localities and that the Sexual Offences Courts would be rightly situated. Should all Courts have capacity for treating sexual offences or should there be only designated specialized courts to address sexual offences.

Ms Waterhouse replied that the issue had been thoroughly considered by all member bodies of Shukumisa and the decision had been reached to call for improved prosecution and access to justice as these were the key underlining issues to the placement of the TCC and Sexual Offences Courts.

Ms Vetten added that the idea behind siting TCCs in localities with the highest incidents of sexual offences made sense. What was needed was to consider alternative models which produced similar outcomes as the TCCs; it was a good idea to keep implementing the TCCs but it was necessary to begin to look beyond the TCCs. With regard to the Sexual Offences Courts, it was assumed that the same logic would be followed to site them in localities with the highest incidents of sexual offences. While specialization was desired, it could inadvertently have the effect of limiting accessibility; a balance must therefore be created. Training to create awareness must be made available to the public. Further, borderline competency levels for the attitude and skills of persons to be appointed to these Courts must be established.

Mr Jeffery noted that from the statistics in the submission there had been no reflection to indicate monitoring of Courts in the more urban areas of KwaZulu Natal, such as in Durban. Were there statistics on whether sexual offences were more prevalent in urban compared to rural areas or vice versa?

Ms Vetten responded that a case study of a rural area in Mpumalanga which was a major firearm smuggling centre, had shown that the number of firearms used in rape cases had doubled those used in Gauteng. Of all the rape cases that had been charged, only one out of 120 cases had secured a conviction. Close to 60% of rapes in this locality were stranger rapes. 13 men had been tied to 37 different rapes in the locality and none had stood trials for any of the rapes, neither had any of the men been put under police watch. In this same locality, more children reported rapes compared to adults and this was contrary to trends nationally and internationally; this was an indication that rape of adults were probably not being reported at all. Close to 60% of the rapes had been witnessed by at least one other person and yet convictions had not been achieved. Generally, policing work with regard to evidence gathering was very poor.

Ms Waterhouse in addition recommended the adoption of stronger prosecutor-led investigations to combat the dismal figures on convictions for sexual offences.

Mr Jeffery noted that the reduction in the number of Sexual Offences Court was occasioned by Magistrates. While the government’s effort at re-establishing the Sexual Offences Courts was laudable, the main concern was about the attitude of the Magistrates. It was not the governments’ decision to reduce the number of Sexual Offences Courts; Magistrates had alluded to being traumatised by the cases and refused to sit on the Courts. Why did the Police and Prosecutors cope adequately with the same cases yet Magistrates could not.

Ms Vetten replied that besides alleging that they had been traumatised by the cases, most Magistrates did not want to sit on the Sexual Offences Courts because they treated only one type of case - sexual offences - and this in the long run impacted on their chances for being promoted. This was a major consideration for the reluctance of most Magistrates to sit on Sexual Offences Courts. This problem was not unsolvable and was one that could easily be addressed. It was suggested that a rotational system be adopted and that Magistrates be fully debriefed before appointment to Sexual Offences Courts.

Ms Waterhouse in addition stressed the need for political will to address these issues. The rotation system suggested had been adopted by the Magistrate Court in Khayelitsha, Cape Town. The bottom line was that a minimum standard needed to be used for appointment of Magistrates to Sexual Offences Courts. Senior Magistrates and presiding Officers needed to hold Magistrates to account.

The Chairperson questioned whether the representatives and officers of Shukumisa suffered similar issues to the Magistrates.

Ms Vetten responded that they had coping mechanisms for handling these cases.

Ms Schӓfer noted that it was important to correct the impression that it was the government decision to cut down on the number of Sexual Offences Court as reflected in the submission by the Shukumisa. Was there a need to legislate on appointments to the Sexual Offences Courts?

Ms Pilane-Majake asked if Shukumisa had regular interaction and engagement with the Department to highlight the issues raised in the submission and what the responses from the Department had been.

Ms Vetten responded that Shukumisa had written to the Department about the reestablishment of Sexual Offences Courts and had received a response that a suitable time for further engagement would be arranged. It was acknowledged that staffing within the Department must be addressed - two staff members were insufficient to do all the work required on sexual offences.

Ms Pilane-Majake responded that there was a need for further engagement.

Ms Pilane-Majake remarked that the suggestions to consolidate the register, although a good and cost effective solution, was a contentious issue because both registers resided in different departments. There was a need to engage both departments to seek a resolution towards consolidation of the registers.

Ms Pilane-Majake asked to what extent the NPA had supported TCCs.

Ms Pilane-Majake asked to what extent Shukumisa worked with Chapter Nine institutions. They were responsible for the promotion of access to justice and should therefore be brought on board.

Ms Waterhouse responded that Shukumisa worked with Chapter Nine institutions on a regular basis, in particular the Commission on Gender Equality. More responsiveness had been observed of late from the Commissioners; however, the shifts required for a meaningful change were yet to be embedded in the Commission. Another issue for consideration was the actual implementation by government departments of recommendations from Chapter Nine institutions. Many of the recommendations remained unimplemented and there were hardly any enforcement mechanisms to ensure compliance with the recommendations.

Adv L Adams (COPE) asked if the suggestion in the submission for two prosecutors per court specifically dedicated to sexual offences also implied two presiding officers for each court.

Ms Vetten responded that this was not the intention of the proposal. The proposal was limited to having two prosecutors per court solely dedicated to handling sexual offences matters.

Prof L Ndabandaba (ANC) explained that most sexual offences remained unreported because of subsequent intimidation of victims and stigmatisation. He requested that further research be carried out on statistics on unreported sexual offences.

Ms Waterhouse responded that the Department and the NPA were unable to singlehandedly tackle the statistics on under reported cases on sexual offences. A good starting point would be to improve the operations with regard to cases that had already been reported.

Ms Vetten added that statistics had indicated that another major reason why the cases of sexual offences were not reported was a lack of faith in the criminal justice system. Addressing this concern was one way of tackling the issue of under reporting.

Mr J Sibanyoni (ANC) stressed the need for civil society to share independent statistics with Parliament to assist in its functions of oversight over government agencies and departments. There was a need to address the lack of an information system to monitor repeat sexual offenders.

Mr Sibanyoni commented that there was a need to present information to the NPA on the statistics of withdrawn cases and call for a redress on this basis.

Ms S Sithole (ANC) requested further engagement with the presenters on some of the issues brought to light on the case studies cited in the submission.

The Chairperson thanked the Shukumisa Campaign for the insightful submission and Members requested that question which it had for the NPA and the Department be forwarded to the Committee Secretary.

The meeting was adjourned.