Violence Against Women & Access to Justice: hearings

Meeting report

JOINT MONITORING COMMITTEE ON THE IMPROVEMENT OF THE QUALITY OF LIFE AND THE STATUS OF WOMEN
10 November 1999
VIOLENCE AGAINST WOMEN: HEARINGS

Chair: Pregs Govender (ANC)

Documents handed out:
Overview on violence against women in South Africa
Submission by Rape Crisis (available here 18/11/99)

Chair: Pregs Govender (ANC)

SUMMARY
Masimanyane Women's Support Centre spoke about its research project which is designed to analyse the position of women in the Justice System in South Africa, and more particularly the Eastern Cape region.

NISAA spoke about their recently published book about the history of women's shelters and the history of domestic violence and abuse in South Africa.

MINUTES
Masimanyane Women's Support Centre
Ms Rashieda Manjoo said that Masimanyane had conducted a study on domestic violence and rape using police dockets and court files. The report of this research will be officially released on 16 November 1999. This research was difficult to do because of the lack of information contained in the files. Sometimes it was very difficult to tell the relationship of the parties involved and even the gender of the victim was sometimes unclear. The township courts had no computerised system and thus it was hard to access files.

Out of 624 rape cases that passed through the Mdantsane Court in 1997, by April 1999: 368 had been postponed, 100 were struck off the roll (the files did not provide a reason though probably due to insufficient evidence), 30 warrants were issued for arrest, 60 cases were withdrawn (by state or complainant, again not specified), 40 went to trial, twenty were entered in error and six were finalised. Out of these six, in three the outcome was unconditional imprisonment and 3 were found guilty with sentences ranging from 2 to 9 years.

In the same period in the East London courts, there were 793 rape cases of which 647 were postponed, 40 acquitted, 25 moved to another court, 20 were sentenced (9 of whom received suspended sentences of four years or more and 3 got a fine of R200).

The police blamed the courts, the health workers blamed the police ... everyone blamed each other. The police expected the social workers to tell the women their rights and the social workers expected the police to do it. One woman who went to the district surgeon was sent back to the police (she had to find her own transportation) because they said no medical exam could take place until she had made a statement (though they could have called the police to come to the hospital).

Overall, there is a lack of communication, lack of training, a lack of transportation to hospitals and police stations, etc. There is also a reluctance to appear in court, on the part of medical examiners, for fear of the court system and witnesses being treated with disrespect. Victims back out of prosecution due to lack of support. The system is not victim friendly. There are reports of women waiting for their court appearance in the same hallway as her assailants. The victims do not know what is going on and they are not given any information at all.

Examples were cited of women being checked by district surgeons but being given no information about STDs or pregnancy; of dockets being lost and of victims not being notified of their assailant's bail hearing nor of his release on bail.

Why do we need prescriptive legislation for the judiciary? Because they are not looking at these situations through a gendered perspective. They are still looking at things in a way that is prejudicial against women.

Another problem many women face is that they do not always have the same prosecutor. The prosecutor will take time off, take study leave, transfer to other courts. Then they do not know what to do when being questioned. They are made to be compliant witnesses who are not allowed to question the defence.

Similar problems applied to Domestic Violence cases. Everyone blames someone else. There is no holistic way of dealing with the situation. Law falls short because it is INTERPRETED. There should be a focus on implementation. Police get only four hours training on how to deal with domestic violence, but this will not help because it is still being interpreted by them in a way that is prejudicial against women.

Leslie Ann Foster, Executive Director of Masimanyane, spoke to her document (see Appendix 1).

Questions
Ms T Botha (ANC): Can we get a sense of the difference between urban and rural conditions for rape and domestic violence? I ask this because the area you're covering is more rural than urban. I'm thinking about how rural people versus urban people are brought up. It is a matter of social conditioning. Women in rural areas, for a long time, were not really allowed to be near men until the time of their arranged marriages. What is the difference now?

Ms Manjoo: Mdtansane is a township but at the same time it is kind of rural. There is a general lack of knowledge that you can ask for assistance for transport and sheriffs fees, etc. There were long delays because sheriffs did not trust the government to provide money and so they would wait for cash up front before they took action. There is a huge difference between township and urban centres. There was a lack of knowledge of law by officials in Mdtansane.

Ms S Vos (IFP): I would like you to focus on accountability for behaviour. How important a factor is being held accountable in the grand scheme. Where do you place the power of the state in that accountability. Also, why is there very little fear of being held accountable?

Ms Manjoo: About the culture of impunity around domestic violence, we're all in agreement. However we don't have a welfare system that helps support people when their main breadwinner has been taken away. That is the main complaint, that once the provider is jailed, the family is out of luck. Though I have looked at the US system of mandatory arrests and minimum sentences, and, although they do hurt people to some extent, it really helps to put fear of accountability in them. Though here we would have to back it up with some kind of welfare system.

I also looked at perpetrator programs. There is one in America that is 24 weeks and if the inmate does not say a word it does not count as a session and they have to go to another one. It would be difficult to get people to talk, however. Another idea is weekend incarceration, however I have talked to officials about this and they said that the warders would never enforce it.

Why is there little fear? Because of this culture of impunity that has been built up around violence against women. Plus, domestic violence is seen as private. And the system is clogged up, so it is difficult to prosecute people.

Ms Foster was requested to explain the following comment in her report, "It is Government's duty to develop the social movements so that they adequately address the problem." She responded that it must implement change because it will not happen at community level if government does not push for it. Therefore it is government's duty.

NISAA Women's Institute for Development
In her briefing Ms. Zubeida Dangor mentioned that NISAA had recently published a book about sheltering abused women. The idea for the book came out of a desire to end the silence around violent abuse. The book aims to document the history of domestic violence, hear from women, and provide a resource for those interested in this neglected aspect of South African life. Women who have experienced violence formed teams to produce chapters for the book. There are a range of abstract and concrete recommendations that come out of the book.

There is a great need for South African research in this area. In most other areas it is easy to get statistics, just not on gendered violence. We must look at the economic costs of violence against women, the cost of incarcerating violent abusers and children who have turned to delinquency because of violence in the home, also traumatised female workers whose productivity drops (and absenteeism increases) because of abuse.

We must also examine media reports on rape. From them you get the idea that such acts are mostly perpetrated by strangers when really it is most usually by friends, family, and neighbours. They also focus on the rape of white women by black men which furthers racial divides.

Many government commitments have not been implemented and followed through. Issues have NOT been addressed. Apathy becomes prevalent once there's been some official action such as the passing of legislation, but when it comes to following through, they say, "it's been addressed." The demand for accountability should be upheld by government and not deemed unpatriotic. Government must also look at the problem of protecting women from ineptitude. People must be educated and trained. More money must be set aside for interdicts from sheriffs. Officials do not know their job. For example, women do not know that clerks are supposed to help them fill out their forms if they have trouble. Also the extension of shelters into rural areas has not begun. There's a shelter in Israel which shelters men not women thus taking violent offenders out of the home. We need to be innovative like this. And we need to start educating our children as early as possible.

Right now shelters are being funded from external funds. We must shift to government funding. We need a national plan for action that works alongside NGOs. We also need a Human Rights Watch report.

There's a tolerance for violence, especially in the home. There's an indifference to gendered violence. We, as a society, collude with the acceptance of violence and negation of the value of women's lives. There was an article recently in the Mail and Guardian, "Why we hate South Africa." We must be cautious about how we represent ourselves. Everything is NOT hunky-dory.

Ms Lisa Vetten from NISAA spoke to the history of domestic violence and abuse in South Africa and raised the following points:
- For men, social change is very threatening. They use violence to uphold the current social order.

- We must also look at what militarisation did to men in South Africa. The aim of militarisation was to "make a man" out of men, rid them of all girlishness, thus it was women themselves who were reviled. It is important to note that when men rape women it is not only to show women their place, but show other men that women are powerless.

- There is this myth that after 1997 the incidence of rape increased dramatically, as if apartheid suppressed it. In actuality rape is increasing and has been for a long time. The only years it has decreased are 1985, 1990 and 1998.

- In South Africa we have a number of kinds of femicide: witchburning (which seems to be relatively unique to South Africa), intimate femicide, and sexual serial killings.

- With all these violent abuses we must look at the intersection between race and gender. Slavery and indentured labour are the roots of violence against women where the women's body was viewed as property to be used by their owners.

- We must look at the retrenchment of men since that seems to be very damaging to them and may be a large cause of violence.

- People within government are not looking at issues with a gendered perspective.

- We are looking around the world at men's programmes and seeing what has worked and what has not.

Ms Foster: I have a question directed at the Committee. How will the Committee monitor CEDAW and the Beijing Platform?

Ms Govender: We have looked at how each ministry is doing and write a report stemming from interrogations of each ministry, which we will give to Parliament and make as widely accessible as possible.

In closing Ms Govender thanked Masimanyane and NISAA for their informative briefings and asked them to make copies of their reports available to the committee.

Tswaranang Legal Advocacy Centre to end Violence Against Women
The Director, Tamara Braam, explained that Tswaranang was an non-governmental organisation based in Johannesburg set up to specialise in legal research and policy in order to make the legal system accessible for women.

She gave an overview of the obstacles to justice for women and how these need to be tackled.

Their organisation applauded the number of new laws that had been formulated, but these still existed on paper only. How do we get these implemented? We need to see that women know about the laws on domestic violence. Much more constructive engagement is needed with the police. Importantly, are there the resources available to make these laws work?

The Family Court Pilot programme that had been set up had enabled them to learn a lot about defects in the system.

A great deal of strengthening needs to happen to improve the training of the following key players:
(a) police. Their training is always in a formal military style and the section on rape is rather fragmented. The work done by NGOs with the police is very scattered.
(b) district surgeons. There is often a callous, unsympathetic and even biased treatment of women who are abused or rape victims.
(c) prosecutors. They are insensitive to gender violence; often there is collusion and no consultation with the woman.
(d) clerks. They are the first entry point for a woman at Court. They need to give better technical assistance and support.
(e) magistrates and judges. They need training on the non-legal aspects of rape.

The question was asked: can you train people to change their attitudes. It was agreed that an assessment is needed on whether training has any impact on someone who has held the same attitudes for thirty years. How can a two-day workshop change these?

Rape Crisis
Bronwyn Pithey, the Legal Adviser of Rape Crisis, made her presentation on the new definition of rape being presented by the Law Commission. This is still in the form of a discussion document and it is hoped it will be presented to Parliament in the February sittings.

Rape Crisis has existed for twenty years in the Western Cape as part of a network involved with the violence against women. It has three centres and concentrates on advocacy work, advice and is community-based.

She pointed out that we do not need to change the Constitution but we need one comprehensive piece of legislation to deal with sexual offences. The legislation in the pipeline would be very progressive as it has drawn on legislation internationally. They have worked on extensive proposals nationwide.

A change in the definition of rape would be the first step as part of a long process to make the justice system more sensitive to the needs of women and children and men too.

The new rape definition is framed around the concept of 'unlawful sexual penetration' which takes place under coercive circumstances, such as with force or under threat. In these terms an act of sexual penetration can be oral, anal or vaginal penetration or even simulated sexual intercourse under coercive circumstances. Both men and women can be rape victims. Under this new definition any sexual penetration becomes rape if it is unlawful .

There are other clauses proposed in bringing together all sexual offences under one act. Protection of children and child molestation clauses are framed, as well as on child prostitution, and other forms of commercial exploitation of children.

Appendix 1:
Masimanyane Women's Support Centre

Overview on violence against women in South Africa
Presented by : Lesley Ann Foster

Introduction
South Africa is into its second term of democratic rule. The government has had to grapple with a myriad of problems not the least of which is the high crime rate in the country. For South African women, the situation is far more dismal. South Africa is said to have the highest statistics for gender-based violence in the world for a country not at war.

President Mandela in his inauguration speech after the first free election committed his government to ensuring gender equality in the country. This broad political commitment was demonstrated when the government stipulated that 30% of all people in all three tiers of government must be women. Further political commitment has been made by the ratification of the Convention on all forms of discrimination against women (CEDAW) and the adoption of the Beijing Platform of action without reservations. National machinery has been established and consists of the Commission on Gender Equality, the Office on the Status of Women the Human Rights Commission, the Public Protector and others.

Programmes have also been put in place. These include the National Crime Prevention Strategy, the Sexual Offences Guidelines, the Justice Department's Gender policy and a National Plan of Action for children to name but a few.

President Mbeki has continued this trend in government to address gender inequality and improved female representation in government by appointing women into more of the top government posts and of course into the main decision making arenas. Furthermore, the President has articulated particular concern about the high levels of Violence against Women and girl children saying that the transformation will not be successful if VAW is not eradicated.

What is the current picture
There are few studies that can accurately reflect the situation which women find themselves in at this moment. Commission on Gender Equality and some NGO's has done some work nationally and internationally.

We do know that women and girl children make up about 54% of the population. The Development Bank of South Africa (1991) estimates that 56,4% of women 15 years and older are without income of any sort and as such, constitute the most deprived sector of the population. At least 23,7% of the South Africa population (mainly Black Africa people) are said to live on less than US$ 1 a day. Furthermore, unemployment for women is 6% higher than for men; domestic labour and other reproductive labour is obtained from women for which they are not adequately remunerated although the government is in the process of addressing that issue through legislative reform. Women head more than 35% of single parent households and these households are poorer than male-headed households (Pregs Governder).

This paints a dismal picture of the economic deprivation of women. International studies have shown that the impact of such poverty has a negative impact on women's health both physically and psychologically

At present the government is addressing violence against women and girl children through reform of legislation and attempting to address the inefficiencies in the criminal justice system.

A recent study conducted by Masimanyane Women's Support Centre has highlighted the fact that this approach is too limited. The study looked at the experiences of women reporting rape and domestic violence in the greater East London area. The court records of two courts were examined, one of the courts servicing an East London area and the other Mdantsane magistrates court which is set in a township and services some outlying rural communities.

The methodology used was interviews, focus group discussions with all stakeholders including magistrates, prosecutors, social workers, district surgeons and other health providers, case studies and perusal of court dockets and police records.

The study was exploratory in nature and therefore falls short of the scientific data on which policy makers rely, the information gleaned gives the perceptions of people on the ground and indicated the levels of awareness of communities and whether they are able to access the remedies afforded them through the legal justice system.

I would like to share with you some of the Findings:

There are three police stations, which feed into the Mdantsane magistrate's court. Only 189 cases were referred by these police stations to the court. We looked at a sample of ten cases and found court delays of between 3months and 3 years were found.

We looked at the Mdantsane magistrate's court files, which totalled 624 cases as at April 1999. This highlighted a discrepancy between police and court records. Of the cases at court, 368 had been postponed, 100 struck off the roll, 30 warrants of arrest were issued; 60 were withdrawn by either the state or complainant, 20 entered in error 40 went to trail and 6 were finalised. Of the 6 sentences ranged from between 2-9 years.

In the East London courts we found 793 cases of which 647 were postponed, 40 acquitted, 49 withdrawn, 25 moved to another court and 32 were sentenced. Sentences ranged from a R200 fine to 20 years imprisonment.

I would like to read you a case study:
"I went to the hospital after the police station. I was assisted immediately by the hospital staff and hardly had to wait for the district surgeon to examine me. Nobody explained to me what the district surgeon was going to do. It was not a problem for me to be examined by a male district surgeon. He told me about the bruises/injuries and told me to come back for a check up a week later. No other information was given tome on pregnancy or other sexually transmitted disease. I was given two pills to tale and only after that did my own doctor tell me that it was to prevent pregnancy. I only demanded a blood test after the dermatologist at the hospital told me this. It was the only treatment that I received. I was treated with suspicion by the hospital staff. I told them what happened but they ignored me completely until my mother took me to the right department. Only the dermatologist really assisted me and gave me information / treatment.

This information gives some indication of women's experiences when reporting rape. Similar statistics and attitudes prevail when women seek interdicts through the courts.

This study has revealed interesting and important insights into the understanding of women's experiences, the articulation of these and the approaches by each agency to address the problem. Each group of service providers interviewed expressed their opinions and perceptions and put forward a set of recommendations for better addressing the problems.

There is a growing understanding that women are being denied access to their rights due to ignorance of the law and institutional problems that subvert rights rather than making it accessible. Torture in the form of rape and domestic violence continues unabated. The constitution of this country, the extensive national machinery together with the changes in laws, policies and programmes which have been developed, have not resulted in a change in the levels of gender based violence which South African women experience. It is clear that none of these measures are addressing the causes of the problem they aim to combat. There needs to be a stronger recognition that responsibility for eradicating VAW lies not with government alone but with communities and the entire South African society. It is however Government's duty to develop the social movements and infrastructure which can adequately address the problem.

In order to develop and sustain a democratic society, there has to be deep, rapid and fundamental change on a number of levels. In line with this has to be the recognition that we cannot legislate for change. Social justice and social change requires more than laws and policies.

Women's organisations in South Africa believe that it is imperative that we begin to address the problem by placing it both within a historical and political perspective. The historical perspective must recognize the influence of Apartheid in the present mindset of individuals, communities and society as a whole. We need to acknowledge the pain of the past and the influence this has on the entire nation.
The fragmentation existing within communities is indicative of the fragmentation of identity of individuals and the problems each of these fragmentations give rise to. We believe that one of the reasons why we are not seeing a change in attitude of the judiciary or why rape and domestic violence is almost condoned at community level, is because we have not created adequate space in the transformation process for the acknowledgment of our past traumas and a lack of adequate and appropriate mechanisms for healing the pain which every single citizen in this country has been subjected to.

We acknowledge the work of the Truth and Reconciliation Commission and applaud the efforts this body made to create some of the space that we are suggesting here.

Zubeida Jaffer, in her book, How the Dutch Dealt with the Traumas of the Second World War suggests some lessons for South Africa. She cautions against insufficient acknowledgment of the severity of the suffering of all the peoples of this country during the Apartheid years. She points out the initial Dutch response to the traumas of the war saying "Understanding and focussing on the past were seen to stand in the way of the thrust for economic reconstruction and recovery. The traumas of the past were to be obliterated in a flurry of activity to create wealth and prosperity for all" (Pg2). Jaffer goes on to say that the Dutch discovered forty years after the war that the nation still held deep within its psyche the pain of their past and this had a profound effect on families and whole communities. It was eventually clear that the process of healing which a nation engages in must have balance, dignity and sensitivity appropriate to the profound issues being dealt with. We think that not enough has been done hence the high levels of fear, anger and frustration in our country. The culture of violence has its roots in our past and we therefore have to go back to that starting point to address the problems that we now face in all aspects of the transformation process but more importantly in addressing violence against women. Such reflection will help us to re-look at the direction we have taken and the strategies we have developed to eradicate gender-based violence.

NEW VISION FOR ADDRESSING VIOLENCE AGAINST WOMEN
In order to sustain a democratic society, Public Education programmes are required for the widespread teaching of human rights and the principles of democracy. Teaching human rights is far broader than a simple intellectual knowledge of the Constitution and legislative processes. Primarily it means instilling a deep-seated set of values that would be a foundation for responsible citizenship - values encouraging interest and involvement in larger social issues as opposed to mere self-centredness; values necessary to maintain a healthy democracy.

At the moment large numbers of people in our country are standing on the side-lines watching the transformation process, criticising the attempts being made by government and excluding themselves from the process. Public education programmes have to be developed and made accessible in all the languages of our country through the use of all forms of electronic and print media as well as radio. We can only bring about necessary change through a concerted, comprehensive and integrated accessible public education programme involving government and all of civil society.
The most influential people in communities are as much a part of the body of people on the sidelines as the people on whom they exert influence. Here I use the example of religious leaders and school principals, and teachers to name but a few. These community leaders are responsible for moulding characters, developing ethos.

A community's sense of morality, accountability and entire values systems are in the hands of community leaders such as these. It stands to reason they should be drawn very closely into all programmes for social change.

Our present policies are focussing on legislative change and this is very necessary. We do however have to move beyond that into measures for transformation of society and merely developing laws, policies, national machinery and limited programmes do not best do this. We need these strong accessible Public Education programmes which have great depth and which aim to create awareness but which instil the values necessary to build and sustain a human rights culture and democracy.

This is a huge and expensive task. All aspects of society have to be examined and reviewed in order to establish the extent and depth of the problem. The Commission on Gender Equality, the Office on the Status of Women and other bodies such this parliamentary committee are undertaking some of this work. This strategy is best affected by an interdepartmental and inter-agency approach or partnership. Greater cooperation between government departments and NGO's is necessary with Government taking responsibility for encouraging coalition building between NGO's CBO's and government structures at the local, provincial and national level. The work done by the Women's National Coalition in drawing women together to develop the Women's Charter of Effective rights should be used a model.

The involvement of men in such programmes and in work on eradicating violence against women is imperative. It is necessary for appropriate bodies to conduct an audit of work being done on men and masculinities. All people involved in men's programmes should be drawn together at a national forum to discuss the issues in this area and in relation particularly to violence against women, It is important that men themselves identify the critical issues and decide on the focus of work that should be embarked upon. Men must take responsibility for shaping their own agendas but they must develop a partnership with women's groups in addressing the problems which men and women face. Men too suffer from the traumas of the past and appropriate acknowledgment is necessary so that appropriate strategies can be developed.

Too much of what we do ignores an important aspect of people's lives and that is the aspect of spirituality which is more often referred to as self esteem and self worth. I am not referring to a deep aspect of peoples lives which is the essential aspect of being human. The innate core of humanness has been eroded in S.A. due to Apartheid.
Economic deprivation and other political factors have destroyed peoples identities and eroded their self esteem and self worth. The destruction of spirituality through political and economic factors is one of the reasons why people are not able to access their rights.

We are essentially hoping for change through superficial and material means instead of changing the ethos of society. We cannot leave out the spiritual dimension in a comprehensive effort for change. Spirituality is too often seen as separate from the political or economic dimension, by both the spiritual and political movements. Spirituality has to be connected to where we are moving politically as well.

The issue of Violence against Women best illustrates the need for a deep awareness of the necessity for working at developing the spirituality of individuals. The purpose of intervention to assist battered women is to make justice where there has been profound injustice. The injustice of women battering is brokenness done to the body and the spirit and to relationships. Justice making involves breaking the silence and allowing the truth to be told. It also involves confronting the abuser and holding him accountable.

What is crucial for government to recognise is that social movements will be the driving force to effect the changes. As David Korten points out, the fine-tuning of the old system is not adequate. You cannot legislate for change. Continuing with business as usual or along this route will have disastrous consequences for the process of transformation and the building of our democracy.

In conclusion, Robert Theobold warns:
"We need to move in new directions and the longer we wait to develop them, the higher the costs will be."