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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
3 August 2004
INITIATIVES REGARDING SEXUAL OFFENCES, MAINTENANCE AND DOMESTIC VIOLENCE: NATIONAL PROSECUTING AUTHORITY BRIEFING
Document handed out
Chairperson: Ms F Chohan-Khota (ANC)
The Committee was briefed by the head of the Sexual Offences and Community Affairs (SOCA) unit on its work to improve the lives of women and children. The presentation focussed on sexual offences, particularly rape cases, maintenance and domestic violence. Most of the discussion centred on the Thuthuzela model the unit had developed which aimed at addressing and improving convictions in rape cases.
The Chair welcomed the Committee Members and explained that the program of the Committee was still open. There were a number of bills that were before the Committee. These bills however were not ready yet to be brought before the Committee. The Chair had been consulting with the drafters in the Department and the previous chair to get the drafters to include the changes that the Committee had proposed.
Mr S Swart (ACDP) asked whether the Child Justice Bill would be discussed the following week. He added that oversight visits also had to be done.
The Chair said that the bills were not ready yet and that she could not say when they could be ready. It seemed that the African Protocol, which would be discussed later that week, would need a report which would need to be drafted and would take up some time. She would meet with the department later in the day to ascertain at what point they were with the bills and then be able to draw up a program. She added that she did not think that oversight visits would happen in this year as they had started late. She welcomed Adv Majokweni from the National Prosecuting Authority and invited her to give her report. She explained to Members that they had asked Adv Majokweni to brief the Committee on the critical legislation that had implications particularly for women and children.
Advocate T Majokweni, Special Director of Public Prosecutors, Sexual Offences and Community Affairs (SOCA) began by explaining the objectives of the SOCA unit. These were to improve the management and successful prosecution of cases of violence against women and children, to look at the reduction of secondary victimisation, ensuring access to child support and the proper management of young offenders. The details of SOCA's report can be seen in the attached document.
Referring to the report she said that she would like to highlight certain issues in it. The unit had prioritised sexual offences. Sexual offences were still largely regulated by the common law and the old Sexual Offences Act. She said although some progress had been made in reducing gender-based violence, it was still difficult to protect women meaningfully. The reporting of this kind of violence had stabilised at unacceptably high levels. The increase in reporting could also mean that people are more reliant on the justice system.
The management of rape cases still needed much attention and much investment had gone into this area. In research done it was found that in the year 2000, 52 000 rapes were reported. In the same year only 8200 were finalised and only half of these resulted in convictions. It was felt that there was no accountability in the system. The concept of a case manager was therefore introduced. The job of the case manager was to track the case and see that no dockets would be lost and withdrawn by police. This was a pilot project in the Manenberg/Gugulethu area. A key part of this project was that it was a victim centred approach that would minimise victimisation and the contamination of evidence. All of these innovations have been packaged in the Thuthuzela Model that has been designed for sexual offences.
The Chair said that she liked the model in which rape victims could report at health centres as well. She asked Adv Majokweni to explain where these centres have been implemented.
Adv Majokweni said that this system had been implemented in five centres, namely, Manenberg (Cape Town), Galashewe Hospital (Kimberley), Baragwanath Hospital (Soweto), East London (Mdantsane) and Libode outside Umtata. These centres have been working well and have lead to a conviction rate of 80%
The Chair asked for the mechanisms involved in the process.
Adv Majokweni said that the advantage of the centres was that the victim received all the support needed under one roof. Once a victim reports at a police station linked to the centre, she will be taken to a comfort room. The police officer would call an ambulance and the victim would be taken to the centre which is based at a hospital. At the centre, the site coordinator would arrange for a doctor to do the examination. The victim is then given an opportunity to bath or shower. A nurse would administer anti-retrovirals. The police officer would then arrive and take the statement from the victim. The system involved here differs from the old system where statements would be taken immediately. In this system, the victim is more composed at the time of making a statement and is therefore more reliable. Once the statement is taken, the investigating officer contacts the prosecutor who is on call and he will guide the investigating officer on the route that must be followed. The case manager gets a copy of the docket so that nothing can be lost and the case can be tracked. This had lead to the cycle time being reduced from 18 months to four months.
The Chair said that the issue around this model was cost. Some of the work required, such as the co-operation of police did not require much. She asked that Adv Majokweni provide a cost analysis for the Committee. She also asked that SOCA provide the Committee with some of the things which could be included in legislation which was presently before the Committee especially the protocols which would be needed between the different role players. She also asked whether a district surgeon was needed in the model.
Adv Majokweni agreed to do the cost analysis and report. She added that a district surgeon was not needed but that designated doctors were used but that it was hoped that forensic nurses could be used in the future especially in the rural areas. Adv Majokweni proceeded to explain the NPA audit that was done. The result of this audit can be seen in the attached report.
The Chair referred to some of the statistics in the report, particularly on page 7 and asked what happened to cases that resulted in such a low conviction rate.
Adv Majokweni said that some the cases are closed as undetected, others as unfounded and some are withdrawn. These are done without the intervention of the prosecutor. By the time it reaches the prosecutor, more than half would have been closed or withdrawn.
The Chair asked if SOCA had any statistics on cases that have been withdrawn.
Adv Majokweni said they did not have these. There was research at present that was looking at the causes of withdrawal of cases. Some of the reasons were not sufficient evidence, victimisation of victims and corrupt officials. Another piece of research was also looking at the causality of rape so that preventative measures could be put in place.
The Chair said that in some countries, rape cases could not be withdrawn once reported. This should be borne in mind when the research was done. She felt that if the research could highlight the problem of withdrawals, this could be considered in future legislation.
Adv Majokweni agreed with the Chair and said that the research was aimed at removing the responsibility from the victim. This would then remove the pressure from her to withdraw the case. Adv Majokweni then proceeded to inform the Committee on changes that were taking place in the maintenance system. She pointed out that the aim was to streamline the system that was fraught with problems. One of the problems was the lack of co-ordination in the system. Some improvement had taken place since 1994 but there were still some problems. The new Maintenance Act of 1999 had introduced some innovations such as the appointment of maintenance prosecutors, maintenance officers and maintenance investigators. The system of maintenance investigators had not yet been implemented as it had a human resource problem. One of the challenges facing the system was that there was no civil enforcement of maintenance orders.
The Chair asked that the civil enforcement be clarified.
Adv Majokweni said that there was a problem in obtaining a warrant to attach the assets of maintenance defaulters.
The Chair was surprised and said that this should be possible.
Adv Majokweni said that in practice, it was very difficult and was happening in very few cases.
The Chair asked that the Committee be supplied with a report on this issue.
At this point, due to unforeseen circumstances, it was not possible for the PMG monitor to be present.
The Chair then opened the meeting to questions from the floor.
Mr S Swart (ACDP) suggested that perhaps a no withdrawal principle could be applied to domestic violence cases as well. He also pointed out that SOCA had said that victims in the age group 14 to 18 years were the most neglected and vulnerable maybe even due to victimisation. He suggested that should the age of consent be reduced, as has been suggested, this age group would be more vulnerable and that the problem would increase.
Adv Majokweni said that the no withdrawal issue was being considered. The ideal was that prosecutors could only withdraw cases that had been ratified by the Director of Public Prosecutions. It was hoped that this position would be reached in future. The age group of 14 to 18 was a very sensitive age and it was sometimes difficult to convince all the role players in the case to take the case forward. She felt that if the age of consent were reduced, many of these problems would be reduced. She said that this would also deal with the problem of two teenagers experimenting with sexual intercourse. The feeling was that that they should not be criminalised.
Ms Meruti (ANC) acknowledged that lots of work was done by SOCA. She wanted to highlight the problem of victims in rural areas as many of them had to travel long distances to report cases and in some cases were dependent on the accused. She asked if there were any statistics for the rural areas and whether there was any consultation with victims when the accused got bail or parole.
Adv Majokweni said that the target group for the model was rural and urban. The tendency had been to lean more to the rural areas. She explained that Mdantsane had some rural aspects as did Galeshewe in Kimberly. The Libode centre outside Umtata was exclusively rural. The model was adaptable for the various situations, but there was a standard below which they could not go. A vehicle was provided for centres as many times the police did not have a vehicle. A public awareness program is done about the centre and the issues that are dealt with by the centre. These are done at schools and for adults. They were also working with traditional leaders as well. A memorandum of understanding was signed with the house of traditional leaders on the 15 July. As far as statistics were concerned, she said that similar trends were found with urban and rural areas. The results had shown that the age group of 9 to 18 was the most vulnerable in both areas. The introduction of the victim assistance officer dealt with the lack of information to the victim regarding bail and parole for the accused.
Mr Maloi (ANC) wanted to know what was meant by oral rape. He also wanted to know what the timeframe was for the report back on the victim assistance framework. He wanted to know who the donors were for the Thuthuzela Project and what percentage was being funded. The problem of the cash hall payments of maintenance was a problem that was highlighted two to three years ago and it still seems to be an ongoing problem. He wanted to know when this would be addressed.
Adv Majokweni said that currently the law does not cater for oral rape. It was hoped that the new Sexual Offences Act would cater for all other forms of penetration. At present all other sexual activities had been excluded from the definition of rape in the law. If the definition was broadened, the same kind of severe sentences could be applied to these other forms of acts as well. The time frame for the victim assistance framework was for the end of October. By this time the first draft for the minimum standards should be ready. SOCA was very careful when it dealt with donors as issues of integrity was very important. A screening process was done. Some of the current sponsors are Vodacom, Kelloggs Foundation, UNICEF and USAID. These organisations have either given money or furniture for the centres. The percentage of donations varied from donor to donor. Adv Majokweni agreed with the Member that the problems at cash halls was an ongoing one and one that the Department of Justice was grappling with. They were trying to find creative ways to deal with all the problems here.
The Chair added that the problem with cash hall payments was an issue that was raised at the budget hearings and was a legacy issue. There were also some problems of fraud and accounting procedures. There was a process in which procedures could be standardised. Some of the other plans that were being considered were to use Pep Stores as a paypoint. There was still much to be sorted out though. She added that she would be following up with the Department the following week on all its promises that were made during the budget hearings. The Chair then asked Adv Majokweni to explain what currently happens at Regional Courts when rape cases were reported and what kind of interventions was needed here.
Adv Majokweni explained that should the victim report at a clinic, they would be sent to the police station and in most cases would not come back to the clinic again. The victim should be sent to the police station to collect the form and the crime kit. The statement would be taken at the police station. The victim would then wait to be taken back to the hospital. The examination at the hospital would be very brief. She pointed out that some doctors did not do the forensic examination properly and some did not know about the crime kit. Sometimes the wrong kit was brought along to the hospital.
The Chair asked whether the crime kit was not held at the hospital.
Adv Majokweni said that it was kept at the police station and brought to the hospital as the doctor had to use it.
The Chair felt that this was something that had to be attended to which did not require much work.
Adv Majokweni said that discussions were being held with police regarding this and they were still not keen to lose their authority over these kits. These discussions were continuing. They were also training doctors in the use of these kits and it was hoped that forensic nurses could also be trained.
The Chair asked if SOCA could provide the Committee with a list of the hospitals where these services were working and where they were not. She explained that rape caused physical trauma and hospitals should be able to provide help in this regard.
Adv Majokweni continued to explain that the police would then take the kit and send it away for analysis. In some cases, the police officer would take the victim home. The investigating officer could then take months to arrest someone or the case might be withdrawn. At this point the prosecutor is not aware of the case. If there is someone arrested, it will be referred back for further investigation and it can get postponed further quite a few times. Once the case goes to court, the victim will be informed. There is no preparation or counseling for her. The case could even be withdrawn without informing the victim. The cycle time in the Regional Court could be from eighteen months to three years.
The Chair pointed out that the real challenge was to get every court to operate as efficiently as the Thuthuzela Court. It was not possible to institute a Thuthuzela Court across the country but rather to get the current Regional Courts to work towards the Thuthuzela model.
Mr Maloi (ANC) asked if there were any plans to have more Thuthuzela Courts.
Adv Majokweni said that the National Director had instructed them to have six more centres by the end of April 2005 so that all the provinces were covered.
The Chair said that it was important that these centres share experiences with the Regional Courts.
An ANC Member said that these models were still a drop in the ocean. She suggested that SOCA use the local government structures as centres.
Adv Majokweni said that they were moving in that direction and would be talking with SALGA.
The Chair referred to the prosecution of an IFP Member of Parliament and said that he had been prosecuted at regional court and then it was sent to the high court for sentencing. It was then sent back to the regional court for sentencing. She was not sure if she was correct, but it seemed as if this was a shift. She asked SOCA to get back on this to the Committee. She thanked Adv Majokweni for the presentation that was very informative.
The meeting was adjourned.
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