SUBMISSION TO THE JUSTICE AND CONSTITUTIONAL DEVELOPMENT COMMITTEE

IN RESPONSE TO THE CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL PUBLISHED IN GOVERNMENT GAZETTE NO. 25282 DATED

30 JULY 2003

 

 

Prepared by:

The Women’s Legal Centre

Cape Town

15 September 2003

 

 

EXECUTIVE SUMMARY

 

INTRODUCTION

The Women’s Legal Centre welcomes the Criminal Law (Sexual Offences) Amendment Bill as a move towards reforming the common law and legislation relating to sexual offences. We view this process as critical in addressing the high levels of gender based violence in South Africa and protecting the constitutionally guaranteed rights of complainants in sexual offence cases, which rights include the right to freedom and security of the person, dignity, equality and access to health care. Our hope is that this process will result in comprehensive and effective sexual offences legislation that reinforces the State’s commitment to ending gender based violence and recognises the far reaching and negative effects thereof not only on women but on our society as a whole.

The attached submission was prepared by the Women’s Legal Centre in response to the Criminal Law (Sexual Offences) Amendment Bill as contained in the Government Gazette No. 25282 of 30 July 2003. The Bill proposes to amend and repeal certain laws relating to sexual offences. This submission relates to the provisions contained in the Preamble (as read with the Schedule to the Act), guiding principles; definitions; evidentiary rules and vulnerable witnesses.

Preamble and Guiding Principles

The Women’s Legal Centre disagrees with the manner in which the Bill has included "Guiding Principles". It is recommended that where principles are merely an affirmation of the Constitutional right to equality these should form part of the Preamble. Where it is envisaged that a positive duty should be imposed on the state this should form part of the body of the Act and should not be termed "Guiding Principles". The terminology is problematic, as, in its current form, it does not place any positive duty on the state. Instead they are framed as "feel-good" provisions with no clear duties being imposed. The finer details in relation to the positive duties should be encapsulated in the substantive provisions of the Act or in Regulations to the Act so as to allow for flexibility in the management process and regular review and amendment where necessary. This would form part of the national strategy for multi-disciplinary intervention relating to sexual offences to be agreed upon by government departments and NGO’s.

The Definition of Rape

The Women’s Legal Centre specifically endorses the approach of the International Criminal Tribunal for Rwanda and the Former Yugoslavia (ICTR) and (ICTY) for the acknowledgement that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts.

The Women’s Legal Centre recommends that a definition focus on the coercive circumstances of the act in question and then broadly define coercive circumstances rather than attempt to come up with an exhaustive definition. It appears as though the Law Commission has attempted to predict and foresee every conceivable situation involving coercive sexual acts being committed and has failed to consider the over-riding purpose of codifying the law of rape and the aim of criminalizing rape within our constitutional framework of equality, dignity, privacy and autonomy.

We support a broadening of the definition so as to encompass oral genital violations and sexual violations without creating separate offences in this regard. The Women’s Legal Centre wishes to emphasise that an approach should not be adopted which attempts to foresee and deal with every conceivable rape and/or sexual assault. The repeal of the common law definition of indecent assault and the incorporation of a new definition of indecent assault is recommended as per the submissions presented by the Gender Project, Community Law Centre, University of the Western Cape and the Institute of Criminology, University of Cape Town. In the final instance the definition as set out by the Gender Project, Community Law Centre, University of the Western Cape and the Institute of Criminology, University of Cape Town is endorsed, save for the recommendation that coercive circumstances be defined in a manner that does not create a closed list of coercive circumstances, as set out hereunder:

Rape

A person is guilty of the offence of rape if he or she -

  1. unlawfully and intentionally commits an act that causes penetration, however slight, of –
    (a) the genital organs or anus of the complainant by the genital organs of the perpetrator or any other object used by the perpetrator;
    1. the mouth of the complainant by the genital organs of the perpetrator; or
    2. the genital organs or the anus of the perpetrator by the genital organs of the complainant;

when committed under coercive circumstances, under false pretences or by fraudulent means or in respect of a person who is incapable in law of appreciating the nature of an act that causes penetration.

(2) Unlawfully and intentionally compels, induces or causes another person to commit an act that causes penetration, however slight, by the genital organs or any other object used by such other person of the mouth, genital organs or anus of a third person under coercive circumstances, under false pretences or by fraudulent means or where such other person is incapable in law of appreciating the nature of an act that causes penetration.

(3) Coercive circumstances, referred to in subsections (1) and (2), includes but is not limited to any circumstances where there is –

    1. a use of force against the complainant or another person or against the property of the complainant or that of any other person;
    2. a threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or
    3. an abuse of power or authority to the extent that the person in respect of whom an act which causes penetration is committed is inhibited from indicating his or her resistance to such act, or his or her unwillingness to participate in such an act.

(4) False pretences or fraudulent means, referred to in subsection (3)(a), are circumstances where a person –

    1. in respect of whom an act that causes penetration is being committed, is led to believe that he or she is committing such an act with a particular person who is in fact a different person; or
    2. in respect of whom that causes penetration is being committed, is led to believe that such an act is something other than that act.

(5) The circumstances in which a person is incapable in law of appreciating the nature of an act that causes penetration referred to in subsection (3)(b) include circumstances where such person is, at the time of the commission of such act –

    1. asleep;
    2. unconscious;
    3. in an altered state of consciousness;
    4. under the influence of any medicine, drug, alcohol or other substance to the extent that the person’s consciousness or judgment is adversely affected;
    5. a mentally impaired person; or
    6. below the age of twelve years.

(6) A marital or other relationship, previous or existing, shall not be a defence to a charge of rape.

(7) The common law relating to –

    1. the irrebuttable presumption that a female person under the age of twelve years is incapable of consenting to sexual intercourse; and
    2. the offences of rape and indecent assault, except where such offences have been committed prior to the commencement of this Act,

is repealed.

(8) Subject to the provisions of this Act, any reference to "rape" in any law must be construed as a reference to the offence of rape under this section, unless it is a reference to rape committed before the commencement of this Act, which must be construed to be a reference to the common law offence of rape.

Indecent assault

A person is guilty of the offence of indecent assault if he or she -

(1) unlawfully and intentionally commits an indecent act with another person under coercive circumstances, under false pretences or by fraudulent means or where such other person is incapable in law of appreciating the nature of such an act; or

(2) unlawfully and intentionally compels or induces the complainant to engage in an indecent act with –

(a) the perpetrator him or herself;

(b) the complainant himself or herself; or

(c) a third person

under coercive circumstances, under false pretences or by fraudulent means or where the complainant is incapable in law of appreciating the nature of such act.

Criminalizing Harmful HIV-related behaviour

The Women’s Legal Centre expresses its concern at the inclusion of a sub-clause indirectly aimed at criminalizing harmful HIV-related behaviour as this is in direct conflict with national and international obligations in relation to the intentional infection of persons. Whilst we acknowledge that in some circumstances, criminal sanctions are appropriate, we wish to emphasise that:

In general, arguments against criminalization (or in favour of limiting the scope of criminalization) outweigh the arguments that existing criminal offences or amendments to the criminal law offer a desirable response to HIV-transmitting or exposing conduct. In the vast majority of cases, public health measures offer a better alternative to criminalization. A co-ordinated response between prosecutors and public health officials is needed, one that attempts least intrusive and restrictive measures first and proceeds to more coercive interventions, if these should prove necessary. The criminal law should be a measure of last resort; it is not, and cannot be, a sufficient response to conduct that risks infecting others. In the final instance the unjustifiable invasion of one’s dignity, privacy and equality would make any similar provision unconstitutional. There are existing, less restrictive means to achieve the purpose of the Bill without stigmatising the HIV positive individual. Furthermore, since women are more likely to know their status they are the persons who will be most at risk in terms of prosecution.

Protective Measures

The effectiveness of existing protective legislative measures have been severely hampered by the lack of knowledge on the part of witnesses of their rights and the failure of presiding officers to interpret the law in a manner concurrent with providing adequate protection to witnesses in sexual offence proceedings. In fact, the Courts have displayed a general reluctance to afford such witnesses protection, notwithstanding that the purpose of protective measures is to give some protection from humiliation and injury to the dignity of a person who was forced to undergo some indecent act and to limit the consequences that could flow from having to testify in an open court or in the presence of the accused regarding matters of an intimate, personal and embarrassing nature.

The provisions dealing with protective measures are set out in Sections 14 and 15 of the Bill. Although we support the wording of Sections 14 and 15(1) of the Bill, in relation to section 15, we respectfully submit that:

  1. the automatic declaration as a "vulnerable witness" should be extended to witnesses to the offence being tried;
  2. Subsection (2)(c) be re-phrased to reflect that trauma may result from recounting the evidence and/or testifying in front of the accused or others;
  3. the words "one or more of the following factors" be inserted at the end of subsection (2) after the word "of" and before the list of factors;
  4. a new subsection be inserted at the end of subsection (2) adding as a factor for consideration the "risk of further harm";
  5. the summoning of a "knowledgeable" person in terms of subsection (3) should be mandatory when doubt exists and should not be a matter for judicial discretion and that guidelines as to who qualifies as a "knowledgeable" person should be included in subparagraph (3) specifying that any person with knowledge of one or more of the factors listed in section 15(2) is a "knowledgeable person";
  6. provision be inserted in the Bill providing witnesses in sexual offence proceedings the right to challenge the non-appointment of an intermediary prior to testifying;
  7. emphasis should be placed on the factors listed in subsections (6)(a) and (b) as a court is required to direct that a vulnerable witness be protected by "one or more" of the listed measures and that, in practice, this may mean little more than prohibiting the publication of the complainant’s identity. Although such prohibition is important for protecting the privacy of the complainant, it offers little, if any, protection from the trauma associated with testifying in open court and/or the presence of the accused;
  8. subsections (6)(c) and (d) should be deleted as it should be accepted that these needs exist in respect of all vulnerable witnesses and that the rights enjoyed by an accused are not unlimited and need to be balanced with those of a vulnerable witness in sexual offence proceedings;
  9. the prosecution would need to make out a convincing case for the revocation or variation of a direction regarding protective measures and guidelines should be included as to what circumstances may justify the prosecution making such request;
  10. a Court must be satisfied that it would be in the interests of justice to vary its initial direction and that such variation or revocation is likely to improve the quality of evidence be given by that witness, having regard to all the circumstances of the case, including the factors listed for consideration in subsections (a) and (b) of subsection (6).

Accordingly, we respectfully propose that section 15 read as follows:

15(1). A Court, in criminal proceedings involving the alleged commission of a sexual offence, must declare a witness, other than the Accused, who is to give evidence in those proceedings a vulnerable witness if such witness is -

  1. the Complainant in the proceedings pending before the Court; or
  2. a child; or
  3. has witnessed the offence being tried.

  1. The Court may, on its own initiative or on request of the prosecution or any witness, other than a witness referred to in subsection (1) who is to give evidence in proceedings referred to in subsection (1), declare any such witness, other than the Accused, a vulnerable witness if in the Court’s opinion he or she is likely to be vulnerable on account of one or more of the following factors–

  1. age;
  2. intellectual, psychological or physical impairment;
  3. trauma associated with giving evidence in relation to the alleged commission of a sexual offence and / or testifying in the presence of the Accused or in open court in sexual offence proceedings;
  4. cultural differences;
  5. the possibility of intimidation;
  6. race;
  7. religion;
  8. language;
  9. the relationship of the witness to any party to the proceedings;
  10. the nature of the subject matter of the evidence;
  11. risk of further harm; or
  12. any other factor the Court considers relevant.

  1. The Court must, if in doubt as to whether a witness should be

declared a vulnerable witness in terms of subsection (2), summon any knowledgeable person to appear before and advise the Court on the vulnerability of such witness. For the purposes of this subsection, a "knowledgeable person" is any person with knowledge of one or more of the factors listed in subsection (2).

4. Upon declaration of a witness as a vulnerable witness in terms of this section, the Court must, subject to the provisions of subsection (5), direct that such witness be protected by one or more of the following measures -

  1. allowing that witness to give evidence by means of closed circuit television as provided for in Section 158 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), irrespective of any additional qualifying criteria prescribed by that section;
  2. directing that the witness must give evidence through an intermediary as provided for in Section 170A of the Criminal Procedure Act, 1977, irrespective of any additional qualifying criteria prescribed by that section;
  3. directing that the proceedings may not take place in open Court as provided for in Section 153 of the Criminal Procedure Act, 1977, irrespective of any additional qualifying criteria prescribed by that section;
  4. prohibiting the publication of the identity of the Complainant provided for in Section 154 of the Criminal Procedure Act, 1977, or of the Complainant’s family, including the publication of information that may lead to the identification of the Complainant or the Complainant’s family; or
  5. any other measure which the Court deems just and appropriate.

  1. Once the Court has declared a child a vulnerable witness the Court must direct that an intermediary referred to in subsection (4)(b) be appointed in respect of such witness unless the interests of justice justify the non-appointment of an intermediary, in which case the Court must record the reasons for not appointing an intermediary, which reasons may be challenged by such witness or by another person on their behalf and be determined by the Court prior to such witness being required to commence with their testimony.
  2. In determining which of the protective measures referred to in subsection (4) should be applied to a witness, the Court must have regard to all the circumstances of the case, including –
  1. any views expressed by the witness, but the Court must accord such views the weight it considers appropriate in view of the witness’s age and maturity; and
  2. views expressed by a knowledgeable person who is acquainted with or has dealt with the witness.

7. The Court may, on its own initiative or upon the request of the prosecution, at any time revoke or vary a direction given in terms of subsection (4), provided that it is satisfied that such revocation or variation is in the interests of justice and is likely to improve the quality of evidence of the witness having regard to all the circumstances of the case and subsections 6(a) and (b), and the Court must, if such revocation or variation has been made on its own initiative, furnish reasons therefor at the time of the revocation or variation."

Support Persons

At present, no statutory provision is made for the appointment of a designated support person to accompany and thereby provide emotional support to a witness in sexual offence proceedings. Although section 153(3A) of the Criminal Procedure Act allows for certain persons to remain in court during an in camera hearing, it fails to specify who qualifies as such and what support such person is entitled to render to a witness in sexual offence proceedings.

The South African Law Commission in its Project 107, Sexual Offences Report, December 2002, recommended that provision be made for the designation of support persons in the Bill, it being recognised that testifying in court is an extremely traumatic event, particularly when giving evidence regarding a sexual offence, and may result in secondary trauma for survivors of sexual offences or witnesses thereto. The proposed legislative enactment was set out in Section 16 of the Bill referred to Cabinet for consideration but omitted entirely from the Bill currently being considered by the Justice Portfolio Committee.

Subsection (f)(i) to Schedule 1of the Bill, which deals with the "guiding principles" to be considered in the application of the Bill and the adjudication of sexual offences generally, states that:

"in addition to all due process and constitutional rights, complainants should have the following rights-

…to have present at all decisions affecting them a person or persons important to their lives;"

The inclusion of this subsection renders further support for the necessity of a provision dealing with support persons and may well be rendered meaningless should it be omitted. Accordingly, we respectfully recommend that a provision similar to that proposed by the South African Law Commission be inserted in the Bill, amended as follows:

    1. the court should enquire from a minor as to his or her choice of a support person;
    2. that new subsections be inserted placing positive duties on prosecutors and the Court to inform witnesses of their right to have a support person present during criminal proceedings involving the alleged commission of a sexual offence;
    3. that the words "after having consulted with the said witness in chambers" be inserted after the comma and before the words "at any time" in the first line of subsection (7);
    4. the words "of the witnesses choice" be inserted after the word "person" and before the words "in his or her place" in the last line subsection (7);
    5. the proposed affirmation in subsection (8) be deleted and that the court instruct support persons not to interfere with the witness or the evidence being given or obstruct the proceedings in any way;
    6. subsection (9) regarding the transport allowance be retained. However, should this subsection not be accepted for reasons relating to cost then we suggest that its operation be suspended until a future date, which date may be determined by the Minister. In the event that this subsection is rejected entirely, it is suggested that it is deleted and that designated support persons bear their own transport, and any other, costs associated therewith.

Accordingly we respectfully propose that Section 16 read as follows:

Designation of support persons

16(1) The police official responsible for the investigation of a charge relating to the alleged commission of a sexual offence shall, at the commencement of such an investigation, inform the complainant in such charge and any child witness or his or her parent, guardian or a person in loco parentis, of their right to be accompanied by a support person of the complainant’s or witness’s choice while making any statement, undergoing any examination, medical or otherwise, being interviewed or being questioned.

(2) A support person referred to in subsection (1) is not designated by the court and may accompany the complainant or witness during any of the investigative steps contemplated in that subsection.

(3) The prosecutor in criminal proceedings involving the alleged commission of a sexual offence shall inform the complainant and any child witness or his or her parent, guardian or a person in loco parentis, of their right to be accompanied by a support person of the complainant’s or witness’s choice prior to the witness commencing with their evidence.

(4) Whenever criminal proceedings involving the alleged commission of a sexual offence are pending before any court and a complainant or any child witness is to give evidence in such court, the court must confirm, prior to such witness commencing with their evidence, that such witness has been informed of their rights in accordance with subsection (3) and record the witness’s response to being accompanied by a support person of the witness’s choice when giving evidence in court.

(5) If the court has not designated a support person in respect of a witness in terms of subsection (4), the court may at any time on its own initiative or upon request by the prosecutor direct that such witness be accompanied by a support person of the witness’s choice when giving evidence in court.

(6) If the court has designated a support person in respect of a witness in terms of subsection (5) on its own initiative, such witness may waive the designation of such support person: provided that the court shall accord such waiver the weight it considers appropriate in view of the witness’s age and maturity.

(7) The court may, notwithstanding a request in terms of this section, refuse the designation of a support person of the witness’s choice if the court is of the opinion that the designation of such person will not be in the interests of justice, and may, after consultation with such witness in chambers and upon furnishing reasons for its refusal, designate another person as support person.

(8) A support person designated in terms of this section may accompany and be seated with the relevant witness while such witness is making statements to any person, being interviewed or giving evidence in court.

(9) The court may, if it deems it to be in the interests of justice and in the best interest of the witness, after having consulted with the said witness in chambers, at any time revoke the designation of a support person and may designate another person of the witnesses choice in his or her place.

(10) A person who has been designated as a support person is entitled to such allowance as if he or she was a witness for the State."

 

Where a witness is giving evidence outside of court, for example in circumstances contemplated in Sections 158(3) and 170A of the CPA, we submit further that it should be clearly stated that such person is entitled to the presence of a support person of their choice. In this regard, we support the inclusion of draft Section 158 (3A) in the CPA and recommend that a provision consistent therewith be inserted in Section 170A of the CPA. Accordingly, we recommend that Section170A be amended by insertion after subsection (6) of the following subsection:

"170A(7) If a court has directed that a vulnerable witness as referred to in subsection (5) be accompanied by a support person as referred to in section….. of the Sexual Offences Act, 20… (Act No. xx of 20…) no examination, cross-examination or re-examination of such witness shall take place other than in the presence of his or her support person unless such witness agrees otherwise."

Evidentiary Rules

The Women’s Legal Centre endorses the provisions contained in sections 16, 17 and 18 of the Bill and has set out arguments in relation to strengthening these provisions and the necessity for including them in the legislation, as opposed to relying on existing rules of evidence or procedure. We submit that the provisions dealing with previous consistent statements and length of delay be strengthened so as to not exclude the existing position which allows a court to take into account a previous consistent statement made. We propose a re-drafted provision, which clarifies the fact that no negative inferences may be drawn by a failure to make such a statement or by the length of delay between reporting the rape and the rape itself. The section should thus read as follows:

Evidence of previous consistent statements and delay in reporting

16. A court, in criminal proceedings involving the alleged commission of a sexual offence, may not draw a negative inference on account of-

      1. the fact that previous consistent statements have not been made;
      2. the length of delay between the alleged commission of such offence and the reporting thereof.

In the same manner, we also endorse the acknowledgement by the Law Commission in relation to the inadequacies of existing rules relating to expert evidence on the impact of sexual offences. However, we propose that the provision be amended so as to make the hearing of evidence of this nature mandatory as opposed to discretionary. Section 17 has thus been re-drafted and strengthened accordingly.

17 Evidence of the surrounding circumstances and

impact of sexual offence

Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant must be adduced at criminal proceedings where such offence is tried in order to prove-

    1. whether a sexual offence is likely to have been committed-
    2. (i) towards or in connection with the person concerned;

      (ii) under coercive circumstances referred to in section 2(3)

    3. for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person concerned.

The unconstitutionality of the cautionary rule and the failure of the Supreme Court of Appeal to expressly exclude this in sexual offences is discussed before endorsing the proposed section in the Bill.

Insofar as other aspects or provisions have not been canvassed herein (such as the provisions dealing with children, medico-legal aspects and treatment) the Women’s Legal Centre specifically aligns itself with and endorses the submissions by the following groups:

Insofar as the Centre has made submissions in relation to other provisions we have indicated in the text of the submission where we have relied on the submissions of other organisations.

 

INTRODUCTORY comments: THE CONTEXT OF VIOLENCE AGAINST WOMEN INTERNATIONALLY AND IN SOUTH AFRICA

 

INTRODUCTION

Before dealing with the Bill itself we wish to make some preliminary observations as to the international and national context of violence against women. It is unfortunate that in certain respects the Bill has tended to focus on technical aspects without necessarily appreciating the context, both internationally and nationally. We are of the view that the framework as set out below could and should inform the entire Bill and this Committee when considering whether to include / exclude / amend certain contentious provisions.

INTERNATIONAL FRAMEWORK

South Africa has ratified both the Convention on the Elimination of Discrimination Against All Women (CEDAW) and the Convention on the Rights of the Child placing obligations on the State to take steps to eliminate all forms of discrimination against women and to provide protection for all children.

Furthermore, the Declaration on the Elimination of all forms of Violence Against Women has reaffirmed that there is an "urgent need for the universal application to women of the rights and principles with regard to equality, security, liberty, integrity and dignity of all human beings." Violence against women has been identified as an obstacle to the achievement of equality for women. Our Constitutional Court has also endorsed the aforegoing approach by holding that:

"Sexual violence and the threat of sexual violence goes to the core of women’s subordination in society. It is the single greatest threat to the self-determination of South African women."

It has been universally accepted and recognised that violence against women cuts across lines of income, class and culture and have to be matched by urgent and effective steps to eliminate its incidence. The Preamble states that:

"In the light of the above there is a need for a clear and comprehensive definition of violence against women, a clear statement of the rights to be applied to ensure the elimination of violence against women in all its forms, a commitment by States in respect of their responsibilities, and a commitment by the international community at large to the elimination of violence against women."

The Declaration defines violence against women, which is definition is set out below:

Article 1

For the purposes of this Declaration, the term "violence against women" means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

Article 2

Violence against women shall be understood to encompass, but not be limited to, the following:

(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;

(b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;

(c) physical, sexual and psychological violence perpetrated or condoned by the state, wherever it occurs.

The aforegoing have placed a duty on the state to take steps to effectively deal with violence against women. Furthermore, in the decision of Velasquez Rodriguez v Honduras it was held that States must demonstrate due diligence by taking active measures to protect, investigate, prosecute and punish private actors who commit abuses. Applying this decision to the context of violence against women, requires States to take effective legal measures to protect women from violence, as well as preventative and protective measures, irrespective of whether this violence occurs in the public or private sphere. We respectfully submit that this is the international context, which should inform any legislation currently being considered within the context of violence against women.

THE SOUTHERN AFRICAN FRAMEWORK

In 1997 the Southern African Development Community (SADC) evidenced its concern for violence against women in the Addendum to the Declaration on Gender and Development, by reaffirming a commitment to the prevention and eradication of violence against women and children in the region. The SADC further recommended that all States review and reform the criminal laws and procedures applicable to cases of sexual offences, to eliminate gender bias and ensure justice and fairness to both the victim and accused. It is within this framework and the obligations accepted by the South African government in relation to violence against women that any law reform should take place.

THE SOUTH AFRICAN CONSTITUTIONAL FRAMEWORK

It is submitted that the innovative provisions contained in the Bill of Rights provide the impetus for the legislature and judiciary to adopt an approach, which allows women’s voices to be heard and contextualised within the courtroom. In this section we briefly consider some of the core provisions of the Constitution, which specifically mandate the legislature and judiciary to be creative when dealing with domestic violence.

The Constitutional Court has endorsed a "generous or purposive approach" in respect of the Bill of Rights. In the context of violence against women this recognises that interpretation involves a value judgment whereby the legislature in enacting legislation and the Courts in interpreting laws need to protect the marginalized, previously disadvantaged people of South Africa, whilst recognising the importance of the values of equality and freedom. Furthermore, the Bill of Rights asserts that the state "must respect, protect, promote and fulfil" the rights in the Bill of Rights.

The equality clause entrenches the principle of substantive equality, as opposed to formal equality, taking into account differing circumstances in order to ensure equality of outcome. Within the context of violence against women a contextual approach to equality means the legal enquiry shifts away from "an abstract comparison of similarly situated individuals to an exploration of the actual impact of an alleged rights violation within the existing socio-economic circumstances." This requires a clear understanding of the manner in which women subjected to violence have been disadvantaged, as a group, and requires one to acknowledge real life experiences of the women concerned.

The right to dignity is one of the core rights. It is not only a justiciable and enforceable right but also a value that informs the interpretation of all other rights. Dignity is rooted in the determination to move away from the history of apartheid by giving supremacy to qualities previously denied to citizens. Cowen argues that viewing dignity through this lens of history and denied humanity allows us to understand dignity more fully. In our view applying a historical, contextual and purposive approach to dignity and "reading it" into all the other rights impacting on violence against women may mean that dignity is capable of being used in a transformative manner serving individual and collective women’s concerns. In our view, the "dignitarian" approach should inform the legislation currently under review. Sexual offences and violence against women impact on a number of other constitutional rights, such as the right to life and the right to privacy.

For present purposes Section 12(1)(c) contains an innovative right in terms of which "[e]veryone has the right to freedom and security of the person, which includes the right …to be free from all forms of violence from either public or private sources." Pieterse argues that the inclusion of the right does create directly enforceable duties and is not confined to protecting only the individual from vertical threats by the state but also threats from private actors. The provision allows for a reconceptualization of state duties in relation to the private sphere. Thus, the failure of the state to take positive steps to protect women may render the state an accomplice to the act of violence. We respectfully submit that a substantive approach needs to be adopted whereby the legislature fashions remedies to achieve positive results for women. This accords with the recent decisions of S v Baloyi, Carmichele, Van Duivenboden and Van Eeden.

Having set out the specific progressive context of the Constitution we now turn to the provisions of the Bill and our comments in relation thereto bearing in mind at all times the framework within which the Bill should be analysed.

 

 

THE PREAMBLE AND THE GUIDING PRINCIPLES (SCHEDULE 1 TO THE ACT)

 

1. INTRODUCTION

The Schedule to the Draft Bill contains "Guiding Principles". Whilst the principles enunciated in the "Guiding Principles" are laudable one needs to determine whether in fact they are necessary in the body of the Act and if so, to what extent they should be included. Furthermore, regard should be had to the status of the "Guiding Principles" and their enforceability. Regard should be had to the general structure of the Bill in relation to its preamble, objectives and purpose.

For purposes hereof, we will be considering the purpose of the guiding principles, the rules of statutory interpretation in relation thereto and our recommendations in relation to a reformulation of the contents thereof.

2. THE PURPOSE

According to the SALC Discussion Paper, the Guiding Principles are deemed to be imperative for the formulation of both the substantive and procedural law with regard to sexual offences.

A reading of the principles indicate that there has been a recognition on the part of the Law Commission in relation to the secondary victimisation of rape survivors, which discourages the reporting of sexual offences. It is also based on the constitutional frame-work of equality and non-discrimination with a specific focus on victim empowerment and victim rights. The purpose appears to encourage reporting and to dispel the notion as it exists in communities that the law only protects sexual offenders as opposed to victims of violent crimes.

Bearing in mind the aforegoing purpose one should now consider whether the "Guiding Principles" in fact give effect to this laudable purpose and the extent to which they do so.

3. RULES OF STATUTORY INTERPRETATION

A statute can only be fully and properly interpreted once the contextual structure has been duly recognised. It should further be borne in mind that the Constitution serves as the foundation or "umbrella" of all statutes. This means that the Sexual Offences Act will operate alongside other legislation and will be bound by the principles enunciated in the Bill of Rights. Logically, therefore the principles in the Constitution do not need to be repeated in every piece of legislation enacted since the coming into effect of the Constitution, unless the Act itself expands the Constitutional right (an example here would be the Consent to Termination of Pregnancy Act, which expands on the Constitutional right in relation to reproductive choice). The fact that the principles set out in other legislation and the Constitution need not be repeated does not however detract from the fact that the Sexual Offences Act will have its very own unique purpose; historical context and objective.

In turn, these will be subject to the Constitutional principles of equality and non-discrimination. In any event, one of the rules of interpretation is to the effect that statutes are presumed not to sanction discrimination or inequality. Notwithstanding the aforegoing, an Act does need to set out its purpose and objects and often affirms constitutional principles in doing so. This is usually set forth in the Preamble and long title of the Act. It is trite law that the preamble to an Act may be consulted in order to shed light on the meaning of the Act and its purpose. It is considered to be an essential interpretation tool. It is often referred to as the "declaration of intent" clause, setting out the historical context of the Act and its aims and objectives.

Based on the aforegoing it is clear that placing positive duties on the state or any other body would not appropriately be placed in the Preamble but rather as a substantive clause in the body of the Act. This in turn has an effect on the enforceability of the provision and the sanction to be applied in relation thereto. On the other hand an affirmation of Constitutional principles and historical contexts would be better placed in the Preamble of the Act.

Some acts have two separate sections namely, the "Preamble" and a separate section dealing with the "Objects of the Act." Both these sections do not place any positive duty on the state, and are generally not enforceable but rather seen as the guiding principles for the interpretation of the entire Act.

4. THE DRAFT BILL

In the Discussion Paper the Commission deals with the various options in order to deal with the insertion of "Guiding Principles." By inserting same into the Preamble there is an advantage in that it places the Act into context. The disadvantage is that it has a minimal legal effect. For this reason the Commission does not recommend this approach and the Women’s Legal Centre endorses this approach. The advantage of including these principles as substantive provisions is that non-compliance will lead to enforceable criminal sanctions and will place positive duties on the state. However, the disadvantage here relates to a repetition of Constitutional principles and the enforceability thereof. The advantage of including same in Regulations or a Memorandum / Code of Conduct would be that it would be in line with the multi-disciplinary approach and could be framed as instructions. Non-compliance would then entail serious consequences.

The Commission concludes that the most viable option would be to include the Guiding Principles in its current form as a schedule to the Act.

5. RECOMMENDATION

The Women’s Legal Centre disagrees with the manner in which the Bill has included "Guiding Principles". Bearing in mind the advantages and the disadvantages and the rules of statutory interpretation it is recommended that a via media approach be adopted.

It is recommended that considering a via media would be the most viable way of dealing with the "Guiding Principles." This would mean that where principles are merely an affirmation of the Constitutional right to equality these should form part of the Preamble. Where it is envisaged that a positive duty should be imposed on the state this should form part of the body of the Act and should not be termed "Guiding Principles". The terminology is problematic, as, in its current form, it does not place any positive duty on the state. Instead they are framed as "feel-good" provisions with no clear duties being imposed. The finer details in relation to the positive duties should be encapsulated in substantive provisions in the Act or at the least in Regulations to the Act so as to allow for flexibility in the management process and regular review and amendment where necessary. This would form part of the national strategy for multi-disciplinary intervention relating to sexual offences to be agreed upon by government departments and NGO’s.

These recommendations are not to be interpreted as an exclusion of the principles set forth by the Commission. It is agreed that a framework should exist and the underlying idea is one which is important. However, it needs to be reformulated.

In this regard (a)-(c) should not form part of the body of the Act but should instead be part of the Preamble as they merely affirm the Constitutional imperatives and re-state the current legal position in terms of which complainant’s are guaranteed the right to be treated with dignity and equality. These principles have been enunciated in the Preamble and need not be expanded upon and should be deleted. However, there has been a new insertion in clause (a) in relation to non-discrimination on the basis of "developmental level, physical or mental disability". These are not included in the Constitution and it is agreed that this needs to be taken into consideration. However, this may also be dealt with by including a definition of "age" in the "Definition" section which deals with developmental, chronological and mental age.

Clause (d)-(g) should be incorporated as either substantive provisions in the Act or as Regulations for dealing with Sexual Offenders as part of a multi-disciplinary approach. Importantly they should not be framed as "guidelines" but as instructions with penalties imposed for non-compliance. A section should appear in the main body of the Act imposing a duty on the state in this regard, as per section 18, of the Domestic Violence Act. Insofar as sub-clause (g) affirms the right to privacy it is not necessary and can be excluded having been included in the Preamble. However, the protection afforded in terms of publication should be incorporated in National Guidelines / Regulations. The recommendations of the Gender Project, Community Law Centre, University of the Western Cape are specifically endorsed in this regard.

Clauses (h)-(i) need to be considered in relation to the Regulations and Directives to be issued and could possibly be incorporated into the other provisions dealing with child witnesses.

Clause (j)-(l) should be incorporated into and be taken into account in the Sentencing Framework.

The Women’s Legal Centre raises concerns in relation to the length of time taken to draft Regulations and the problems in relation to delaying the passing of the Bill in order to draft Regulations, which are readily accessible and enforceable at all levels. In this regard it is recommended that this Committee set clear time-frames and guidelines for the drafting of Regulations so as to prevent an untimely delay in implementation of the Act. Alternatively, a section of the Bill may need to be more specific and incorporate the rights of the victims in relation to the aspects canvassed in the Guiding Principles in order to ensure immediate application. These could be included as part of the substantive provisions in the Bill dealing with application and interpretation of the Bill as per the submission of the Gender Project, Community Law Centre, University of the Western Cape. The provision will then read as follows:

All complainants have the right -

(a) not to be unfairly discriminated against, either directly or indirectly, on the grounds of race, colour, ethnic or social origin, birth status, sex, gender, sexual orientation, age and developmental level, disability, religion, conscience, belief, culture or language;

  1. to be treated with fairness, dignity and respect;
  2. to be reasonably protected from the perpetrator;
  3. to be informed of their rights, of the procedures within the criminal justice system which affect them, and the status of their case, including, but not limited to –

    1. the steps that will be taken by the police after the victim reports the sexual assault, with specific reference to the arrest of the perpetrator;
    2. the role of the complainant in the police investigation and the criminal trial;
    3. reasons for delays in effecting arrest, especially where the perpetrator is known to the complainant and she has given the police sufficient information to find him;
    4. the nature and purpose of bail;
    5. Information about the status of the perpetrator where an arrest has taken place (especially where the perpetrator has been released on bail and there is thus a possibility that the victim may encounter him);
    6. impending trial dates;
    7. the status of the case on an ongoing basis, what the next stages in the process will be and the manner in which information about such stages can be obtained; and
    8. the outcome of the case when the case is finalised and the reasons for this outcome, including the outcome of appeal proceedings;

  1. to express an opinion, to be informed of all decisions, and to have their opinion taken seriously in any matter affecting them;
  2. to have matters explained to them in a clear, understandable manner appropriate to their age and in a language and manner that they understand;
  3. to have procedures dealt with expeditiously in time frames appropriate to the complainant and the offence; and

(h) to confidentiality and privacy and to protection from publicity about the offence.

 

7. COMMENTS IN RELATION TO THE PREAMBLE

The Women’s Legal Centre recommends that the vulnerable groups should include women and children and not "prostitution."

8. CONCLUSION

The use of "Guiding Principles" on the part of the Law Commission is to be commended as being laudable. However, upon closer scrutiny it is readily apparent that the mischief it aims to remedy is clearly not being remedied. A reformulation as suggested would clarify the duties and enforceability of the rights contained therein and hopefully contribute in a meaningful way to the accessibility of justice.

 

 

 

 

 

 

DEFINING RAPE

sectionS 2-6 of the draft bill

 

INTRODUCTION

The Women’s Legal Centre commends the Commission for the acknowledgement that the common law definition of rape as currently formulated needs to be repealed and a new definition codified in law.

However, the Centre expresses its concern at the manner in which the current definition has been formulated. Whilst endorsing the criticisms levelled against the common law definition, in our view any new formulation needs to be formulated based on the underlying rationale of protecting women’s dignity and protecting women from all forms of violence.

INTERNATIONAL DEVELOPMENTS

We submit that in developing a definition, it is useful to consider the manner in which the international criminal law framework has dealt with sexual offences. Within this framework one needs to consider the International Criminal Tribunal for the Former Yugoslavia (ICTY) where rape was identified and described by the UN Security Council as "massive, organised and systematic" violations used to "humiliate, shame, degrade and terrify [an] entire ethnic group." The Women’s Legal Centre specifically endorses the approach of the ICTY and the International Criminal Tribunal for Rwanda (ICTR) for the acknowledgement that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts. In the decision of Akayesu it was pointed out that:

The United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment does not catalogue specific acts in its definition of torture, focusing rather on the conceptual framework of state-sanctioned violence. The Tribunal finds this approach more useful in the context of international law. Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity and rape in fact constitutes torture when it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. (Emphasis added)

The Tribunal goes on to define rape as:

[A] physical invasion of a sexual nature, committed on a person under circumstances which are coercive. The Tribunal considers sexual violence, which includes rape, as any act of a sexual nature which is committed on a person under circumstances which are coercive.

Importantly, the Tribunal also acknowledged that sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact – such as the case in point where a woman had been forced to undress and do gymnastics naked in a public courtyard in front of a crowd and the thrusting of a piece of wood into the vagina of a dying woman. In defining coercive circumstances the Tribunal noted that in the context of rape, coercive circumstances need not be evidenced by a show of physical force and could similarly include threats, intimidation, extortion and other forms of duress, which prey on fear or desperation.

This definition has since been adopted in the decision by ICTY in Prosecutor v Delalic and Others and in the case of Celebici where it was found that as there is no commonly accepted definition of rape the Tribunal’s definition in Akayesu should be adopted. The aforegoing was expanded upon so as to include acts such as anal and oral rape in the decision of Furundzija where it was held that:

[F]orced penetration of the mouth by the male sexual organ constitutes a most humiliating and degrading attack upon human dignity. The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person, whatever his or her gender. The general principle of respect for human dignity is the basic underpinning and indeed the very raison d’être of international human humanitarian law and human rights law; indeed in modern times it has become of such paramount importance as to permeate the whole body of international law…it is consonant with this principle that such an extremely serious sexual outrage as forced oral penetration should be classified as rape.

Further in the more recent decision of Kunarac the Appeals Chamber endorses the approach of Akayesu and Furundzija, which emphasises the importance of criminalizing sexual violence on the basis that "serious violations of sexual autonomy are to be penalised." However, in Kunarac the Appeals Chamber felt it necessary to clarify the understanding of coercion. It rejects a narrow interpretation of coercion or force or threat of force, as "it does not refer to other factors which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim." Whilst reverting to the notion of consent is unfortunate, the importance for present purposes is the willingness of the Appeals Chamber to engage with a much broader notion of coercion or force or threat bearing in mind the ultimate purpose of protecting the dignity and humanity of the women concerned. In this regard it is pointed out by the Appeals Chamber that:

Whilst the issue of coercion, force or threat of force are certainly the relevant considerations in many legal systems … the true common denominator which unifies the various systems may be a wider or more basic principle of penalising violations of sexual autonomy.

The Chamber went on to state that having surveyed the relevant provisions of a number of jurisdictions there appeared to be consensus that an interpretation focussing on serious violations of sexual autonomy would be correct.

The Women’s Legal Centre endorses an approach focusing on the coercive nature of rape together with the dignity, humanity and sexual autonomy of the complainant being the focus of protection. Should the aforegoing be adopted it would be in accordance with the international framework as also South Africa’s constitutional framework.

THE SOUTH AFRICAN FRAMEWORK

Having set out the constitutional framework above it is necessary to consider the manner in which our Courts have viewed the crime of rape. The decision of Chapman is illustrative for the manner in which the Court brought the crime of rape within the confines of the Constitution and the right of the rape survivor to be free from all forms of violence. Previously the impact of rape on the survivor would only have been considered during sentencing and never in terms of a right to be free from all forms of violence. However, here the Court, correctly, contextualised rape as:

"…a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilisation. Women in this country are entitled to the protection of these rights."

The judge clearly envisages a situation whereby the Constitution not only imposes certain duties on the state but also forms the foundation for analysing violent crimes, such as rape. Thus the public/private divide is collapsed and the crime of rape, traditionally contextualised as a crime against the state, is seen as a crime violating the fundamental human rights of the complainant who is not a direct party to the proceedings. Voicing the brutality of the invasion and the impact on the rape survivor is crucial in terms of "recreating" the crime of rape from the contextual viewpoint of the rape survivor and gives her a voice, making her visible and a party around which the state’s duty to protect, investigate, prosecute and punish can be measured. We respectfully submit that the words of Mohamed J (as he then was) have subsequently been endorsed within the international criminal law context and should thus serve as a foundation in any consideration before this Commission.

RECOMMENDATIONS

The Women’s Legal Centre endorses the definition proposed by the Institute of Criminology, University of Cape Town and the Community Law Centre, University of the Western Cape. For the reasons set out above the Women’s Legal Centre recommends that a definition focus on the coercive circumstances of the act and then broadly define coercive circumstances.

The defining of "coercive circumstances" is problematic and an attempt should not be made to come up with an exhaustive definition. The jurisprudence should be allowed to develop in this regard, as has proved to be the case in the ICTY and ICTR. The Commission has attempted to predict and foresee every conceivable situation involving coercive sexual acts being committed and has failed to consider the over-riding purpose of codifying the law of rape and the aim of criminalizing rape within the constitutional framework of equality, dignity, privacy and autonomy. Therefore subsection (3) should specify that coercive circumstances includes, but is not limited to, the following acts and then list the acts as per (a)-(c).

In the view of the Women’s Legal Centre, the provisions contained in terms of subsection (4) should form part of the broader definition and the ordinary meaning attributable to fraudulent pretences or means should apply. The Women’s Legal Centre expresses its concern at the inclusion of a sub-clause indirectly aimed at criminalizing harmful HIV-related behaviour as this is in direct conflict with national and international obligations in relation to the intentional infection of persons. This aspect requires full discussion and is considered hereunder in a separate chapter. The Women’s Legal Centre endorses the recommendation of Community Law Centre, University of the Western Cape and the Institute of Criminology, University of Cape Town in relation to the exclusion of section2(2) dealing with prima facie unlawfulness as the subsection does not seem to add anything to the definition and may erroneously be interpreted as imposing a reverse onus on an accused, which has a bearing on the constitutionality thereof. The subsection should therefore be excluded.

Sections 3 and 4 should be deleted and be encompassed in the definition of rape as explained above. Broadening the definition allows for the inclusion of oral genital violation and sexual violation. Again the Women’s Legal Centre emphasises that an approach should not be adopted which attempts to foresee and deal with every conceivable rape and/or sexual assault. The repeal of the common law definition of indecent assault and the incorporation of a new definition of indecent assault is recommended as per the submissions presented by the Gender Project, Community Law Centre, University of the Western Cape and the Institute of Criminology, University of Cape Town. In the final instance the definition as set out by the Gender Project, Community Law Centre, University of the Western Cape and the Institute of Criminology, University of Cape Town is endorsed, save for the recommendation that coercive circumstances be defined in a manner that does not create a closed list of coercive circumstances, as highlighted below:

Rape

A person is guilty of the offence of rape if he or she -

  1. unlawfully and intentionally commits an act that causes penetration, however slight, of –
    (a) the genital organs or anus of the complainant by the genital organs of the perpetrator or any other object used by the perpetrator;
    1. the mouth of the complainant by the genital organs of the perpetrator; or
    2. the genital organs or the anus of the perpetrator by the genital organs of the complainant;

when committed under coercive circumstances, under false pretences or by fraudulent means or in respect of a person who is incapable in law of appreciating the nature of an act that causes penetration.

(2) Unlawfully and intentionally compels, induces or causes another person to commit an act that causes penetration, however slight, by the genital organs or any other object used by such other person of the mouth, genital organs or anus of a third person under coercive circumstances, under false pretences or by fraudulent means or where such other person is incapable in law of appreciating the nature of an act that causes penetration.

(3) Coercive circumstances, referred to in subsections (1) and (2), includes but is not limited to any circumstances where there is –

    1. a use of force against the complainant or another person or against the property of the complainant or that of any other person;
    2. a threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or
    3. an abuse of power or authority to the extent that the person in respect of whom an act which causes penetration is committed is inhibited from indicating his or her resistance to such act, or his or her unwillingness to participate in such an act.

(4) False pretences or fraudulent means, referred to in subsection (3)(a), are circumstances where a person –

    1. in respect of whom an act that causes penetration is being committed, is led to believe that he or she is committing such an act with a particular person who is in fact a different person; or
    2. in respect of whom that causes penetration is being committed, is led to believe that such an act is something other than that act.

(5) The circumstances in which a person is incapable in law of appreciating the nature of an act that causes penetration referred to in subsection (3)(b) include circumstances where such person is, at the time of the commission of such act –

    1. asleep;
    2. unconscious;
    3. in an altered state of consciousness;
    4. under the influence of any medicine, drug, alcohol or other substance to the extent that the person’s consciousness or judgment is adversely affected;
    5. a mentally impaired person; or
    6. below the age of twelve years.

(6) A marital or other relationship, previous or existing, shall not be a defence to a charge of rape.

(7) The common law relating to –

    1. the irrebuttable presumption that a female person under the age of twelve years is incapable of consenting to sexual intercourse; and
    2. the offences of rape and indecent assault, except where such offences have been committed prior to the commencement of this Act,

is repealed.

(8) Subject to the provisions of this Act, any reference to "rape" in any law must be construed as a reference to the offence of rape under this section, unless it is a reference to rape committed before the commencement of this Act, which must be construed to be a reference to the common law offence of rape.

Indecent assault

A person is guilty of the offence of indecent assault if he or she -

(1) unlawfully and intentionally commits an indecent act with another person under coercive circumstances, under false pretences or by fraudulent means or where such other person is incapable in law of appreciating the nature of such an act; or

(2) unlawfully and intentionally compels or induces the complainant to engage in an indecent act with –

(a) the perpetrator him or herself;

(b) the complainant himself or herself; or

(c) a third person

under coercive circumstances, under false pretences or by fraudulent means or where the complainant is incapable in law of appreciating the nature of such act.

 

 

criminalising sexual acts of persons having life-threatening sexually transmitted diseases SECTION 2(4)(c)

 

1. INTRODUCTION

The Bill has included as part of the definition of rape the intentional failure to disclose a person’s life-threatening sexually transmissible disease where there is a significant risk of transmission during an act causing penetration. The Women’s Legal Centre expresses its concern that the provision has been incorporated into a definition of rape. The Centre specifically endorses the following comments:

"Those who would amend the criminal law to prohibit, for example, sexual intercourse without disclosure of one’s HIV status are in one sense trying to identify the "sheep-killing wolf" rather than asking where the flock is wandering."

"Before invoking the rough instrument of the criminal law we must be sure that it will have some impact on the problem at hand. We must also be satisfied that on balance the use of criminal law will not be counter-productive, that it will not "do more harm than good."

Whilst we acknowledge that existing criminal law may not be sufficient to deal with the problem of intentional infection we submit that the Sexual Offences Bill, bearing in mind its purpose and objectives, is not the correct vehicle to be dealing with this complex issue. At present the mechanisms of attempted murder, culpable homicide and assault do exist and insofar as these need to be re-contextualised in the HIV/AIDS arena this needs to be done in a manner which protects the constitutional right of all citizens to equality, dignity and privacy. Furthermore, creating a new offence whereby one "prosecutes bedroom offences" will only compound the problem of criminalization. There is also no reason to believe that a new offence would have a significant deterrent effect and the process of legislating may create a hostile environment and social stigmatisation of all people living with HIV/AIDS. Furthermore, the negative consequences for women in South Africa are profound and amounts to a breach of international principles by the state as well as constitutional norms of equality and dignity.

2. MOTIVATION FOR INCLUSION

The Law Commission acknowledges that the intentional transmission of HIV/AIDS could result in charges of rape, culpable homicide, crimen iniuria, assault or attempted murder. However, notwithstanding the Commission’s previous position that no statutory measures were to be adopted to criminalise acts of persons who fail to disclose that they have a sexually transferable disease the Commission has included such acts as part of the definition of rape. The position has not been thoroughly considered or canvassed and undue reliance seems to be placed on the Canadian decision of Cuerrier. In this case it was held that a person infected with HIV who engages in unprotected sex is may be guilty of rape where there is a significant risk of harm.

We submit that undue reliance has been placed on this decision and its findings cannot be sustained within the South African context. The Supreme Court’s judgment in Cuerrier itself offers a caution against an overly broad interpretation of the decision and an overly eager resort to the criminal law in light of the complexity of the issues raised by such cases. The decision was one based on the facts of the particular case and does not purport to criminalise or codify into legislation the offence, which the Law Commission is currently attempting to do. Further, the majority decision found that non-disclosure of HIV status "may" be dishonest and constitute fraud depending on the circumstances of the case. It has since been suggested that a contextual approach be adopted to assessing the "dishonesty" of not disclosing HIV-positive status, so as to acknowledge that disclosure is not always easily made, and in some circumstances may carry serious risk of physical or other kinds of violence. However, no firm legal conclusion can be drawn as to whether the law will develop in this way. Subsequent to the decision, Canada, despite proposals to amend the Criminal Code, has not in fact done so and has left it up to established criminal law principles to guide the judiciary. The Law Commission has furthermore failed to clearly stipulate the objectives it wishes to pursue by including a statutory offence in this regard.

3. ANALYSIS

It should be borne in mind that persons fearing criminal action will self-exclude themselves from the health system and not be tested or approach the health care system for treatment or a diagnosis. Whilst a person has no knowledge of his/her status it will be impossible for the prosecution to prove the element of intent. Flowing from the aforegoing, women are often the only parties who get tested for HIV/AIDS when attending at ante-natal clinics and thus have knowledge and may be liable for prosecution, notwithstanding that they may have been infected by their partners. It is impossible to assess who is the infecting partner and the person tested is not necessarily the person that has intentionally infected another.

The Women’s Legal Centre further submit that the provision disproportionately affects women and will not pass constitutional scrutiny for violating the equality and dignity clauses for the following reasons:

These factors place women at great risk for contracting HIV/AIDS.

The potential consequences of criminalisation for women who are raped represent an added trauma. Many women are unwilling to tell partners that they have been raped and that they are testing for HIV. They fear the stigma as well as the violence, which may result from such a disclosure. If the proposed definition of rape is introduced, a rape survivor will be less inclined to have herself tested for fear of being diagnosed with AIDS. Studies have shown that HIV or AIDS-infected women may resist telling their partners because they face domestic violence, emotional abuse or abandonment. Many women whose HIV/AIDS status becomes known to others, suffer direct violence at the hands of their partners, family or community.

HIV status should be known as early on in pregnancy as possible to maximise the benefits of early knowledge. This knowledge is relevant for decisions regarding termination of pregnancy, treatment of the pregnant women, medical interventions to reduce the possibility of maternal HIV transmission and decisions about whether to breastfeed. If women fear having knowledge and being accused of knowingly infecting their partners they will not agree to voluntary HIV testing when seeking antenatal care. As knowledge of HIV status is a prerequisite for any medical intervention to reduce the possibility of mother to child transmission of HIV, such interventions will not be utilised and possibilities of limiting perinatal transmission in South Africa will be diminished.

Section 9(3) of the Constitution provides that the State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including gender and sex. The Constitution expressly prohibits indirect discrimination. Although the proposed definition of rape will apply equally to men and women and appears to be gender neutral, it may disproportionately impact on women. The proposal therefore discriminates indirectly against women. Women are discriminated against both on the basis of their sex and their gender. The infringement of women’s right to equality cannot be justified either in view of the purpose of the provision or the extent of the limitation that is imposed. Furthermore, the provision amounts to discrimination on any other ground, which would include HIV-status or sexually transmittable disease status.

4. THE INTERNATIONAL FRAME-WORK

It has been pointed out that contrary to creating an enabling environment for individuals to gain access to health care services, it is more likely that criminalizing sexual conduct will create an unsafe, insecure, threatening and ultimately disabling environment for individuals to protect themselves from transmission and to access health care services. In support of this contention, UNAIDS and the WHO have noted:

In particular, people will not seek HIV-related counselling, testing, treatment and support if this would mean facing discrimination, lack of confidentiality and other negative consequences. Therefore, it is evident that coercive public health measures drive away the people most in need of such services and fail to achieve their public health goals of prevention through behavioural change, care and health support.

Furthermore, in the 1998 International Guidelines on HIV/AIDS and Human Rights published by UNAIDS and OHCHR, Guideline 4 stipulates that:

"States should review and reform criminal laws and correctional systems to ensure that they are consistent with international human rights obligations and are not misused in the context of HIV/AIDS or targeted against vulnerable groups."

It goes on to recommend that:

"Criminal and/or public health legislation should not include specific offences against the deliberate and intentional transmission of HIV but rather should apply general criminal offences to these exceptional cases. Such application should ensure that the elements of foreseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties." [My emphasis]

It must also be noted that the coercive use of public health powers against someone based solely on their HIV-positive status is not only unsound public health practice, it is also unethical and a violation of internationally-recognized human rights. As the International Guidelines point out:

"In exceptional cases involving objective judgements concerning deliberate and dangerous behaviour, restrictions on liberty may be imposed. Such exceptional cases should be handled under ordinary provisions of public health, or criminal laws, with appropriate due process protection." [Our emphasis]

Recognising that sub-Saharan Africa is currently the worst affected in the world by the HIV/AIDS pandemic SADC adopted the Declaration on HIV/AIDS together with a Strategic Framework and Programme of Action 2003 – 2007 on 4 July 2003. South Africa signed the aforesaid Declaration, which specifically stipulates that states should:

The SADC, like the UN, have also endorsed a multi-sectoral approach promoting positive behavioural change and responsible sexual behaviour. It is our submission that the current attempt at criminalizing harmful HIV-related behaviour flies in the face of the aforegoing declarations of intent endorsed by the South African government only two months ago.

5. RECOMMENDATION

The Women’s Legal Centre acknowledges that in some circumstances, criminal sanctions are appropriate. However, we wish to emphasise that:

In general, arguments against criminalization (or in favour of limiting the scope of criminalization) outweigh the arguments that existing criminal offences or amendments to the criminal law offer a desirable response to HIV-transmitting or exposing conduct. In the vast majority of cases, public health measures offer a better alternative to criminalization. A co-ordinated response between prosecutors and public health officials is needed, one that attempts least intrusive and restrictive measures first and proceeds to more coercive interventions, if these should prove necessary. The criminal law should be a measure of last resort; it is not, and cannot be, a sufficient response to conduct that risks infecting others. In the final instance the unjustifiable invasion of one’s dignity, privacy and equality would make any similar provision unconstitutional. There are existing, less restrictive means to achieve the purpose of the Bill without stigmatising the HIV positive individual.

It is therefore recommended that the provision be deleted.

 

 

PROTECTIVE MEASURES

 

1. CURRENT SOUTH AFRICAN POSITION:

The effectiveness of existing protective legislative measures have been severely hampered by the lack of knowledge on the part of witnesses of their rights and the failure of presiding officers to interpret the law in a manner concurrent with providing adequate protection to witnesses in sexual offence proceedings. In fact, the Courts have displayed a general reluctance to afford such witnesses protection as to do so has been said to negatively affect the rights of the accused to challenge incriminating evidence.

This contention has been severely criticised by the courts and human rights activists alike. In the Cape High Court decision of Sarkin AJ in The State v Staggie, the Court, in considering whether the Complainant’s evidence should be given not only in camera, but also via closed circuit television, held, inter alia, that:

  1. the fact that the complainant does not testify in public will not prejudice the accused as far as the trial is concerned and may add some measure of protection for the complainant during her testimony and possibly thereafter;
  2. the purpose of protective measures is clearly to give some protection from humiliation and injury to the dignity of a person who was forced to undergo some indecent act and intends to limit the consequences that could flow from having to testify in an open court regarding matters of an intimate, personal and embarrassing nature;
  3. the interests of justice are served by applying protective measures;
  4. the ability of the accused to adequately cross examine the witness can be achieved where protective measure are employed;
  5. the rights of the accused may be limited in order to protect the right to dignity of the complainant.

Furthermore, it is respectfully submitted that the interests of justice to obtain truthful testimony from traumatised witnesses are likely to be better served by employing protective measures than by subjecting them secondary trauma. Such secondary trauma may result from having to narrate the intimate details of the offence in open court and/or in the presence of the accused and from aggressive cross-examination aimed more at destroying the witness’ ability to testify than obtaining accurate testimony.

 

2. CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL:

The provisions dealing with protective measures are set out in Sections 14 and 15 of the Bill.

  1. DISCUSSION

3.1 Witness to be notified of protective measures

We support the wording of the proposed Section 14(1) and (2) of the Bill, which require witnesses to be notified of the protective measures available to them.

Additionally, given that proposals relating to limited legal representation for complainants in sexual offence cases have not been endorsed and, accordingly, no mention is made thereof in the Bill, we respectfully submit that there is a greater need to ensure the protection of vulnerable witnesses through one or more of the protective measures listed in section 15(4)(a) of the Bill.

3.2 Vulnerable witnesses

Section 15 of the Bill relates specifically to vulnerable witnesses. At present, witnesses in sexual offence proceedings are not automatically afforded protection in order to ensure their ability to give evidence and to preserve the integrity of such evidence. This is due to a lack of recognition of the vulnerability of complainants in sexual offence proceedings and the secondary victimisation they commonly experience in the Criminal Justice system. While provision is made in the Criminal Procedure Act for certain protective measures, the Courts apply these measures inconsistently, if at all, and witnesses are frequently unaware of their rights.

In light of the above, we support the making of special protective measures automatically available to all complainants of sexual offences and children who are required to give evidence in criminal proceedings as well as the automatic declaration of such witnesses as "vulnerable".

We further support the recognition of the need to extend such protection, in certain circumstances, to other witnesses in sexual offence proceedings.

Notwithstanding the above, we respectfully submit that the automatic declaration as a "vulnerable witness" (and concomitant use of protective measures) should not be limited to the witnesses listed in subsection (1) but should be extended to witnesses to the offence being tried. Where the witness indicates that he or she does not wish to be declared a vulnerable witness, this measure may be dispensed with.

Accordingly, we suggest that subsection (1) read as follows:

Recommendation:

"A Court, in criminal proceedings involving the alleged commission of a sexual offence, must declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness is –

    1. the complainant in the proceedings pending before the Court; or
    2. a child; or
    3. has witnessed the offence being tried".

3.3 Discretion to declare a witness "vulnerable"

In addition to subsection (1), which provides that prescribed witnesses must be declared a "vulnerable witness", subsection (2) grants the Court the discretion to afford certain witnesses such status upon consideration of certain listed factors.

3.4 Clarification of "trauma"

Subsection (2)(c) lists "trauma" as a factor that may result in a witness being vulnerable. In this regard we recommend that the subsection be re-phrased to reflect that this trauma may result from recounting the evidence and/or testifying in front of the accused or others. Accordingly, we suggest that subsection (2)(c) be reworded as follows:

"trauma associated with giving evidence in relation to the alleged commission of a sexual offence and/or testifying in the presence of the Accused or in open Court in sexual offence proceedings".

4. Further recommendations

It is further recommended that:

    1. the words "one or more of the following factors" be inserted at the end of subsection (2) after the word "of" and before the list of factors; and
    2. a new subsection be inserted at the end of subsection (2) adding as a factor for consideration the "risk of further harm".

4.1 Evidence by "knowledgeable persons"

Subsection (3) provides the Court with the discretion to summon any "knowledgeable person" to appear before and advise the Court on the vulnerability of the witness. In this regard we suggest that the summoning of a "knowledgeable" person should be mandatory when doubt exists and should not be a matter for judicial discretion. Furthermore, we suggest that guidelines as to who qualifies as a "knowledgeable" person should be included in subparagraph (3) and specific mention should be made that any person with knowledge of one or more of the factors listed in section 15(2) is a "knowledgeable person".

4.2 Protective measures and qualifying criteria

We support subsection (4) as currently drafted.

4.3 Appointment of an intermediary

While we support the recommendation that an intermediary be appointed in respect of a minor who has been afforded "vulnerable witness" status, we are concerned that this protection is made subject to "the interests of justice justifying not appointing an intermediary".

Although we support the requirement that where the interests of justice justify not appointing an intermediary, the Court must record the reasons for such non appointment, we recommend that a provision be inserted in the Bill that provides witnesses in sexual offence proceedings the right to challenge the non-appointment prior to testifying. In this regard, we recommend that subsection (5) be reworded as follows:

"Once the Court has declared a child a vulnerable witness the Court must direct that an intermediary referred to in subsection (4)(b) be appointed in respect of such witness unless the interests of justice justify the non-appointment of an intermediary, in which case the record must record the reasons for not appointing an intermediary, which reasons may be challenged by such witness or by another person on their behalf, and be determined by the Court prior to such witness being required to commence with their testimony".

4.4 Determining which protective measures should apply

We support that in determining which of the protective measures referred to in subsection (4) should be applied to a witness, the court must have regard to all the circumstances of the case and wish to emphasize the importance of the factors listed in subsections (6)(a) and (b). These are of particular importance when considering that, in terms of subsection (4), the court is required to direct that a vulnerable witness be protected by "one or more" of the listed measures and that, in practice, this may mean little more than prohibiting the publication of the complainant’s identity. Although such prohibition is important in terms of protecting the privacy of the complainant, it offers little, if any, protection from the trauma associated with testifying in open court and/or the presence of the accused.

In respect of subsection (6)(c), the Court might consider whether there is a need to protect the witness’s dignity and sense of safety and to protect the witness from traumatisation. We respectfully submit that it should be accepted that the aforementioned needs exist in respect of all vulnerable witnesses and, accordingly, they should not be included as factors for consideration when determining which of the protective measures should be applied to a vulnerable witness. The danger of allowing judicial discretion in this regard is clearly illustrated by the case of S v F. In casu the Court denied the witness in question protection as it had not been specifically alleged that giving evidence in the presence of the accused would subject the witness to further trauma than it had been alleged could result from having to narrate the details of the offence.

Section 6(d) further requires Courts to consider whether the protective measures are likely to prevent the evidence given by the witness from being effectively tested by a party to the proceedings. Again, we are of the opinion that it should be accepted as a matter of course that the protective measures applied to vulnerable witnesses are reasonable and justifiable and not preventative of the evidence being tested effectively. In support of this submission we point out that the rights enjoyed by an accused are not unlimited and need to be balanced with those of a witness in criminal proceedings, and particularly a vulnerable witness in sexual offence proceedings.

Accordingly, we recommend that subparagraph (c) and (d) of subsection (6) be deleted in their entirety in an effort to ensure that the rights of the accused are not placed above the rights of witnesses not to have their dignity or sense of safety infringed and, most importantly, not to be subject to secondary trauma in their pursuance of justice.

4.5 Revoking direction

We are concerned that the Court may at any time revoke or vary a direction given in terms of subsection (4) in relation to a vulnerable witness upon the request of the prosecution. We suggest that the prosecution would need to make out a convincing case for the revocation or variation of such direction and that guidelines should be included as to what circumstances may justify the prosecution making such request. Furthermore, we respectfully submit that the Court must be satisfied that it would be in the interests of justice to vary its initial direction and that such variation or revocation is likely to improve the quality of evidence be given by that witness, having regard to all the circumstances of the case, including the factors listed for consideration in subsections (a) and (b) of subsection (6).

Accordingly, we respectfully propose that section 15 read as follows:

(1) A Court, in criminal proceedings involving the alleged commission of a sexual offence, must declare a witness, other than the Accused, who is to give evidence in those proceedings a vulnerable witness if such witness is -

  1. the Complainant in the proceedings pending before the Court; or
  2. a child; or
  3. has witnessed the offence being tried.

(2) The Court may, on its own initiative or on request of the prosecution or any witness, other than a witness referred to in subsection (1) who is to give evidence in proceedings referred to in subsection (1), declare any such witness, other than the Accused, a vulnerable witness if in the Court’s opinion he or she is likely to be vulnerable on account of one or more of the following factors–

  1. age;
  2. intellectual, psychological or physical impairment;
  3. trauma associated with giving evidence in relation to the alleged commission of a sexual offence and / or testifying in the presence of the Accused or in open court in sexual offence proceedings;
  4. cultural differences;
  5. the possibility of intimidation;
  6. race;
  7. religion;
  8. language;
  9. the relationship of the witness to any party to the proceedings;
  10. the nature of the subject matter of the evidence;
  11. risk of further harm; or
  12. any other factor the Court considers relevant.

(3) The Court must, if in doubt as to whether a witness should be

declared a vulnerable witness in terms of subsection (2), summon any knowledgeable person to appear before and advise the Court on the vulnerability of such witness. For the purposes of this subsection, a "knowledgeable person" is any person with knowledge of one or more of the factors listed in subsection (2).

(4) Upon declaration of a witness as a vulnerable witness in terms of this section, the Court must, subject to the provisions of subsection (5), direct that such witness be protected by one or more of the following measures -

  1. allowing that witness to give evidence by means of closed circuit television as provided for in Section 158 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), irrespective of any additional qualifying criteria prescribed by that section;
  2. directing that the witness must give evidence through an intermediary as provided for in Section 170A of the Criminal Procedure Act, 1977, irrespective of any additional qualifying criteria prescribed by that section;
  3. directing that the proceedings may not take place in open Court as provided for in Section 153 of the Criminal Procedure Act, 1977, irrespective of any additional qualifying criteria prescribed by that section;
  4. prohibiting the publication of the identity of the Complainant provided for in Section 154 of the Criminal Procedure Act, 1977, or of the Complainant’s family, including the publication of information that may lead to the identification of the Complainant or the Complainant’s family; or
  5. any other measure which the Court deems just and appropriate.

(5) Once the Court has declared a child a vulnerable witness the Court must direct that an intermediary referred to in subsection (4)(b) be appointed in respect of such witness unless the interests of justice justify the non-appointment of an intermediary, in which case the Court must record the reasons for not appointing an intermediary, which reasons may be challenged by such witness or by another person on their behalf and be determined by the Court prior to such witness being required to commence with their testimony.

(6) In determining which of the protective measures referred to in subsection (4) should be applied to a witness, the Court must have regard to all the circumstances of the case, including –

  1. any views expressed by the witness, but the Court must accord such views the weight it considers appropriate in view of the witness’s age and maturity; and
  2. views expressed by a knowledgeable person who is acquainted with or has dealt with the witness.

  1. The Court may, on its own initiative or upon the request of the prosecution, at any time revoke or vary a direction given in terms of subsection (4), provided that it is satisfied that such revocation or variation is in the interests of justice and is likely to improve the quality of evidence of the witness having regard to all the circumstances of the case and subsections 6(a) and (b), and the Court must, if such revocation or variation has been made on its own initiative, furnish reasons therefor at the time of the revocation or variation."

 

SUPPORT PERSONS

 

1. CURRENT SOUTH AFRICAN POSITION:

At present, no statutory provision is made for the appointment of a designated support person to accompany and thereby provide emotional support to a witness in sexual offence proceedings. Although section 153(3A) of the Criminal Procedure Act allows for certain persons to remain in court during an in camera hearing, it fails to specify who qualifies as such and what support such person is entitled to render to a witness in sexual offence proceedings.

Notwithstanding the recommendation by the South African Law Commission in its Project 107, Sexual Offences Report, December 2002, that provision be made for the designation of support persons in the Bill, it being recognized that testifying in court is an extremely traumatic event, particularly when giving evidence regarding a sexual offence, and may result in secondary trauma for survivors of sexual offences or witnesses thereto, we are concerned that such provision has been excluded from the Bill tabled for consideration.

Furthermore, subsection (f)(i) to Schedule 1of the Bill, which deals with the "guiding principles" to be considered in the application of the Bill and the adjudication of sexual offences generally, states that:

"in addition to all due process and constitutional rights, complainants should have the following rights-

to have present at all decisions affecting them a person or persons important to their lives;"

The inclusion of this subsection renders further support for the necessity of a provision dealing with support persons and may well be rendered meaningless should these provisions be omitted. Accordingly, we respectfully recommend that a provision similar to that proposed by the South African Law Commission be inserted in the Bill.

2. PROPOSALS BY LAW COMMISSION:

The proposed legislative enactment was set out in Section 16 of the Bill referred to Cabinet for consideration but omitted entirely from the Bill currently being considered by the Justice Portfolio Committee.

Section 16 read as follows:

"Designation of support persons

16(1) The police official responsible for the investigation of a charge relating to the alleged commission of a sexual offence shall, at the commencement of such an investigation, inform the complainant in such charge and any child witness or his or her parent, guardian or a person in loco parentis, of their right to be accompanied by a support person of the complainant’s or witness’s choice while making any statement, undergoing any examination, medical or otherwise, being interviewed or being questioned.

(2) A support person referred to in subsection (1) is not designated by the court and may accompany the complainant or witness during any of the investigative steps contemplated in that subsection.

(3) Whenever criminal proceedings involving the alleged commission of a sexual offence are pending before any court and a child witness, including any complainant, is to give evidence in such court, the court may at any time on its own initiative or upon request by the prosecutor direct that such witness be accompanied by a support person of the witness’s choice when giving evidence in court.

(4) If the court has designated a support person in respect of a witness in terms of subsection (3) on its own initiative, such witness may waive the designation of such support person: provided that the court shall accord such waiver the weight it considers appropriate in view of the witness’s age and maturity.

(5) The court may, notwithstanding a request in terms of this section, refuse the designation of a support person of the witness’s choice if the court is of the opinion that the designation of such person will not be in the interests of justice, and may, after consultation with such witness and upon furnishing reasons for its refusal, designate another person as support person.

(6) A support person designated in terms of this section may accompany and be seated with the relevant witness while such witness is making statements to any person, being interviewed or giving evidence in court.

(7) The court may, if it deems it to be in the interests of justice and in the best interest of the witness, at any time revoke the designation of a support person and may designate another person in his or her place.

(8) Whenever a witness in respect of whom a support person has been designated is to give evidence in court, such person shall affirm to the court prior to giving support that he or she will:

assist the witness to the best of his or her ability; and

not in any manner interfere with the witness or the evidence being given.

(9) A person who has been designated as a support person is entitled to such allowance as if he or she was a witness for the State."

3. DISCUSSION:

3.1 Limitation of entitlement to support person

Subsection (3) as currently formulated clearly limits a witness’s entitlement to a support person of their choice by -

In this regard we respectfully submit that new subsections be inserted in the Bill placing positive duties on prosecutors and the Courts to inform witnesses of their right to have a support person present during criminal proceedings involving the alleged commission of a sexual offence

3.2 Parents or guardians as support persons

Although subsection (1) and (3) currently provide for a witness to be accompanied by a support person of his or her choice, cognisance must be taken of a minor’s wishes in relation to his or her parent or guardian or a person in loco parentis being the designated support person. The importance of taking the minor’s wishes into account is illustrated by the common reluctance on the part of minors to narrate the intimate details of a sexual offence in the presence of his or her caregiver. Accordingly, we recommend that the court enquire from the minor him or herself as to his or her choice of a support person.

3.3 Revoking appointment of support persons

In relation to subsection (7), we respectfully submit that the words "after having consulted with the said witness in chambers" be inserted after the comma and before the words "at any time" in the first line of the subsection. Furthermore, we respectfully submit that the words "of the witnesses choice" be inserted after the word "person" and before the words "in his or her place" in the last line of the subsection.

3.4 Affirmation by support person

Subsection (8) requires the designated support person to affirm to the court that he or she will assist the court to the best of his or her ability and not in any manner interfere with the witness or the evidence being given. We respectfully submit that the proposed affirmation is inappropriate in the circumstances and that it would be sufficient merely to instruct the said person that he or she may not interfere with the witness or the evidence being given or obstruct the proceedings in any way. Accordingly, we recommend that subsection (8) be deleted in its entirety.

3.5 Transport allowance

We support the inclusion of subsection (9) regarding the transport allowance as formulated in the proposed provision, as set out above. However, should this subsection not be accepted for reasons relating to cost then we suggest that its operation be suspended until a future date, which date may be determined by the Minister. In the event that this subsection is rejected entirely, it is suggested that it is deleted and that designated support persons bear their own transport, and any other, costs associated therewith.

Accordingly, we respectfully propose that Section 16 read as follows:

 

"Designation of support persons

16(1) The police official responsible for the investigation of a charge relating to the alleged commission of a sexual offence shall, at the commencement of such an investigation, inform the complainant in such charge and any child witness or his or her parent, guardian or a person in loco parentis, of their right to be accompanied by a support person of the complainant’s or witness’s choice while making any statement, undergoing any examination, medical or otherwise, being interviewed or being questioned.

(2) A support person referred to in subsection (1) is not designated by the court and may accompany the complainant or witness during any of the investigative steps contemplated in that subsection.

(3) The prosecutor in criminal proceedings involving the alleged commission of a sexual offence shall inform the complainant and any child witness or his or her parent, guardian or a person in loco parentis, of their right to be accompanied by a support person of the complainant’s or witness’s choice prior to the witness commencing with their evidence.

(4) Whenever criminal proceedings involving the alleged commission of a sexual offence are pending before any court and a complainant or any child witness is to give evidence in such court, the court must confirm, prior to such witness commencing with their evidence, that such witness has been informed of their rights in accordance with subsection (3) and record the witness’s response to being accompanied by a support person of the witness’s choice when giving evidence in court.

(5) If the court has not designated a support person in respect of a witness in terms of subsection (4), the court may at any time on its own initiative or upon request by the prosecutor direct that such witness be accompanied by a support person of the witness’s choice when giving evidence in court.

(6) If the court has designated a support person in respect of a witness in terms of subsection (5) on its own initiative, such witness may waive the designation of such support person: provided that the court shall accord such waiver the weight it considers appropriate in view of the witness’s age and maturity.

(7) The court may, notwithstanding a request in terms of this section, refuse the designation of a support person of the witness’s choice if the court is of the opinion that the designation of such person will not be in the interests of justice, and may, after consultation with such witness in chambers and upon furnishing reasons for its refusal, designate another person as support person.

(8) A support person designated in terms of this section may accompany and be seated with the relevant witness while such witness is making statements to any person, being interviewed or giving evidence in court.

(9) The court may, if it deems it to be in the interests of justice and in the best interest of the witness, after having consulted with the said witness in chambers, at any time revoke the designation of a support person and may designate another person of the witnesses choice in his or her place.

(10) A person who has been designated as a support person is entitled to such allowance as if he or she was a witness for the State."

3.6 Support person where witness testifies outside the presence of the accused

Where a witness is giving evidence outside of court, for example in circumstances contemplated in Sections 158(3) and 170A of the CPA, it should be clearly stated that such person is entitled to the presence of a support person of their choice. In this regard, we support the inclusion of draft Section 158 (3A) in the CPA and recommend that a provision consistent therewith be inserted in Section 170A of the CPA. Accordingly, we recommend that Section170A be amended by insertion after subsection (6) of the following subsection:

"170A(7) If a court has directed that a vulnerable witness as referred to in subsection (5) be accompanied by a support person as referred to in section….. of the Sexual Offences Act, 20… (Act No. xx of 20…) no examination, cross-examination or re-examination of such witness shall take place other than in the presence of his or her support person unless such witness agrees otherwise."

 

 

evidentiary rules

sections 16, 17 and 18 of the bill

 

1. INTRODUCTION

In this section we commend the Law Commission for the positive steps it has taken to address the negative impact that evidentiary rules have had on rape complainants and their willingness to come forward to report sexual offences. Bearing in mind the purpose of the legislation and the specific acknowledgement of the need to maximise protection for complainants and do so in the least traumatising fashion, the steps taken are endorsed by the Women’s Legal Centre. We note, however, the concerns raised by the Justice and Constitutional Development Committee and wish to address those in the sections hereunder.

2. THE RULES OF EVIDENCE AND THE NEED FOR LAW REFORM

J Kriegler in his criminal law text-book, sets out that the criticisms levelled against the so-called cautionary rules in relation to sexual offences are ‘not deserved’ ('onverdiend').

'Sexual acts - Because of distinctive considerations, a peculiar cautionary rule applies in the case of alleged sexual offences. Complaints of a sexual nature are distinguished for several unique characteristics, which distinguish such offences from other offences against the person. Sexual offences, being inherently intimate, normally take place in seclusion; consequently direct corroboration is exceptional. Unlike the case of most other impairments of the person, there often are no recognisable effects of such actions… As in the case of an accomplice, the participant in an alleged sexual offence is obviously also extraordinarily capable of bending the truth without it being possible to detect the distortion. Allegations of sexual crimes are consequently not only easily made but often difficult to counter. The problem does not only lie with malicious incrimination. The human sexual urge is by its very nature irrational, and is often distinguished by deep-seated emotions and passions of which the person himself/herself is unaware; therefore the versions of the participants are afterwards often unreliable without them being aware of it. Moreover, judicial credibility findings and weighing up of probabilities by Courts are in such instances more fallible than ever. Rational criteria can only be applied to irrational material with great circumspection. When you deal with crimes against women, particularly in tradition-bound communities cultural beliefs (e.g. that the male person must be seen as the "hunter") often play an unexpressed role, which should not be underestimated. Known internal factors such as feelings of guilt, shame, disappointment or frustration are even more difficult to establish or to evaluate. Furthermore, experience has learnt that there are sometimes psychosexual factors which even common sense cannot detect. Our practice insists that the judicial officer who has to decide the facts, must at all times be aware of the problematic nature of this type of case and that must be recognisable from the evaluation by the said judicial officer of the facts of the case that he/she was aware of the said problematic nature of the case and duly considered it…Because the witnesses of sexual crimes are mostly women, the cautionary rule is sometimes called sexist. (See e.g. the strong criticism on what is regarded as the origin and effect of the rule in S v D 1992 (1) SACR 143 (Nm). This reproach is not deserved because the rule is based on strong grounds of principle which do not specifically relate to the gender of the victim. This notwithstanding, the criminal procedure is - especially in practice - not wholly to be exonerated from aloofness and even prejudice against women complainants in sexual offences. The cautionary rule is no pretext and not a licence for discrimination or for personal views on gender roles."

The views expressed herein have formed the basis of decisions of Courts and continues to be the said basis, notwithstanding our Constitutional dispensation. It is apparent that this is what the Law Commission is attempting to address in its provisions dealing with evidentiary rules.

In this submission we deal with Sections16, 17 and 18 of the Draft Bill in relation to evidentiary rules and the need for legislative reform in relation thereto.

3. SECTION 16

3.1 PREVIOUS CONSISTENT STATEMENTS & length of delay

A previous consistent statement is a written or oral statement made by a witness on some occasion prior to testifying and which corresponds with or is substantially similar to his / her testimony in court. The general rule is that a witness is not allowed to testify that on a previous occasion he or she made an oral or written statement consistent with the evidence now being led in court. The rationale for excluding same is based on the fact that a previous consistent statement generally has insufficient probative force and carries the danger of easy fabrication.

However, the law of evidence in South Africa as in other jurisdictions has developed certain exceptions to the rule prohibiting previous consistent statements in sexual offence cases. The rule developed from the English law where it was a defence to a charge of rape where the complainant had not raised the "hue and cry" immediately after the rape. Today the rule has developed and applies in relation to all sexual offences (and to men and women) and not only to rape.

Whilst in some instances the rule has value, as the evidence of an earlier complaint contributes toward proving the truth of the allegation, a problem often exists in relation to the negative inferences, which a Court draws where a complainant has failed to make an earlier complaint or has failed to do so timeously. It enables the defence to exploit the complainant’s failure to complain timeously in order to cast doubt upon her credibility. This is apparent when one has regard to the decision of R v M where the judge drew a negative inference from the complainant’s failure to complain timeously.

3.2 RECOMMENDATIONS

Legislative intervention is required here, as it is clear that our courts have been drawing negative inferences and attaching undue weight to the delay between the commission of the offence and the reporting thereof.

This is illustrated by the case of S v De Villiers en 'n Ander where the Court held that it was a general principle that a complainant was to lay her complaint at the first reasonable opportunity. Thus, the failure to do so was considered to be a factor against acceptance of such evidence. In this case the three complainants delayed for one year before reporting the rape and Cillie J rejected the explanation given and accordingly rejected the evidence.

According to the complainants, the accused had threatened them with a fire-arm and hence they were afraid to report the matter. The judge considered it suspicious that the second complainant waited until she was beaten by her mother a year later in relation to her weak performance at school and constant absenteeism. She then explained to her mother what had happened. The community then interrogated the third complainant who reluctantly came forward and confirmed that she too had been raped by the accused.

It is submitted the judge placed undue weight on this "general principle" and in so doing failed to deal with the issue correctly. In this regard he states as follows:

"Die feit dat die klaagsters, volgens die getuienis, so lank gewag het voordat die aangeleentheid openbaar is, is 'n verdere faktor teen die aanvaarding van hulle getuienis. Die datums waarop hierdie gebeure sou plaasgevind het, was volgens alle aanduidings aan die begin van 1995. Die klagtes is eers in 1996 gemaak nadat daar tugtiging op een van die klaagsters uitgeoefen is. Die beginsel is dat die klaagster in 'n seksuele misdryf by die eerste geleentheid wat dit redelikerwyse van haar verwag kan word, haar klagte behoort te opper. Hoe langer die tydsverloop hoe groter die moontlikheid dat die verhaal 'n versinsel is. Trouens, die feit dat die klaagsters eers na verloop van 'n lang tydperk en 'n aantal vorige geleenthede daartoe kla kan juis die teenoorgestelde effek as die normale hê, naamlik dit kan dien as bewys van die onbetroubaarheid van die klaagsters. Die rede wat die klaagsters aanvoer vir die vertraging, is die beweerde dreigement met die vuurwapen waarmee so pas gehandel is. Soos reeds gemeld, is dit nie bewese nie."

The rule relied upon by the Court is based on the idea that the natural reaction of any genuine victim of a sexual offence is to tell someone immediately; but research clearly shows that most victims are too embarrassed to tell anyone, let alone to do so spontaneously and early.

The subsequent acquittal of the accused (notwithstanding an initial confession in relation to what was later averred to have been a different rape some time earlier) displays the inadequate evidentiary rules in place currently and the need for intervention on the part of the Legislature. In attempting to find a solution it is imperative to strike the right balance between maintaining an emphasis on the dignity of the complainant and preventing relevant evidence from being kept from the fact-finders.

Section 16 of the Bill prohibits the Court from drawing an inference from the fact that a previous consistent statement has not been made and prohibits the Court from similarly drawing an inference from the length of delay between the commission of the sexual offence and the laying of the complaint. Whilst the provision is to be welcomed for the above reasons we suggest a reformulation in order to make it clear that no negative inference may be drawn – where a complainant has immediately reported same and has made a previous consistent statement the Court should be allowed to draw a positive inference and apply the rules of evidence accordingly. Furthermore, the word "solely" should be removed as it seems to indicate that the length of delay may be a factor as long as there are other factors, which the Court considers together with length of delay or lack of a previous consistent statement. Hence, we respectfully propose that the section be amended as follows:

16. A court, in criminal proceedings involving the alleged commission of a sexual offence, may not draw a negative inference on account of-

      1. the fact that previous consistent statements have not been made;
      2. the length of delay between the alleged commission of such offence and the reporting thereof.

4. SECTION 17:

4.1 EVIDENCE OF PSYCHO-SOCIAL EFFECTS OF SEXUAL OFFENCE

This aspect deals with the issue of expert evidence and the admissibility of expert evidence in relation to sexual offences. Whilst this is an aspect which has not received attention in many of our decisions dealing with sexual offences, it is apparent that mechanisms need to be put in place in order for our Courts to effectively deal with the evidence of experts.

Sexual offences bring about a range of psychological effects, which are often different to the reactions of victims of other crimes. It is therefore, necessary to assist judicial officers in the process of understanding the nature and effect of sexual offences.

Whilst there has been a decision in relation Sexual Assault Trauma Syndrome by our Courts there is yet to be a decision in relation to Child Sexual Abuse Accommodation Syndrome, and perhaps we should not be relying on the courts to deal with this aspect. The judgments will inevitably not be able to provide for the procedural aspects in relation to expert evidence in these circumstances. Thus, the courts should only be tasked with developing the jurisprudence in relation to the new provision to be included in the new Act and should not be tasked with introducing same. An analysis of what has happened in this regard in other jurisdictions illustrates that leaving the task to the courts may produce conflicting results.

In 1992 the Pennysylvania Supreme Court in Commonwealth v Dunkle held that the introduction of the Child Sexual Abuse Accommodation Syndrome (CSAAS) was a reversible error because the CSAAS was not scientifically valid and was not generally accepted within the field of child psychology. The case involved allegations that Dunkle sexually assaulted his 14-year-old step-daughter in 1983. The crime was not reported until three years later. The state called an expert to testify as to the reactions and behaviours of children who have been sexually assaulted. The expert testified as to why the victim would not report the assault early, why the victim would not be able to give a clear recollection of the assault, why details may be omitted and then recollected over time in cases involving CSAAS. Dunkle was convicted but the Superior Court remanded the case ruling that the evidence of CSAAS should not have been admitted. The Supreme Court then affirmed this decision.

By contrast the decision in the Delaware Supreme Court in Wheat v State held that the introduction of CSAAS was not an error because evidence of the behaviour of sexually abused children was relevant to the issue of determining if sexual abuse occurred.

In the Wheat case, Wheat was accused of sexually assaulting his 10-year-old stepdaughter. After his arrest and incarceration, the girl recanted her story of sexual abuse to his wife (her mother). She later recanted it to the police officers in charge of the case as well. During the trial, seven months later, the girl claimed that he had in fact sexually abused her and testified to the effect that "after Wheat abused her, he told her that if she told her mother, her mother would tell the state, and that when Wheat went to jail, he was going to break out and kill her and her mother." With regard to the recantations, the state and defence attorneys offered opposing explanations. The state introduced expert testimony on CSAAS. The expert testified as to studies and data, which revealed that 30-40% of children recant but fewer that 5% recant and maintain the altered statement. She also gave additional testimony as to why recantations occur.

Each court reviewed the testimony submitted by expert witnesses on children and their reactions and behaviours to the event of sexual abuse, but dealt with the legal question of admissibility very differently.

The Dunkle Court held that CSAAS was not derived through scientific method, neither was it accepted in the discipline in which it belonged, thus it was inadmissible. The Wheat court held that CSAAS provides the fact-finder with an explanation other than deceit for behaviour that appears to be inconsistent with the claim of sexual abuse. For this reason the Court held that CSAAS evidence was relevant to a material issue in the case and was thus admissible.

It is clear that the court in Dunkle focussed on the reliability of CSAAS evidence and considered whether it was "scientifically viable and reliable." The court in Wheat focused on CSAAS as a tool to aid the jury in making a determination on a material fact at issue: the superficially inconsistent behaviour of a child who claims to be a victim of sexual assault. Thus, the fact that one Court has accepted expert evidence in relation to the psycho-social effects of sexual offences will not automatically mean another Court will interpret and use it in the same way.

The important characteristic which should be the basis of any expert testimony is that Sexual Assault Trauma Syndrome and CSAAS should not be used as a diagnostic tool to prove that a woman or a child was sexually assaulted or abused. Rather, it should be seen as explanatory tools used to rebut defence claims in relation to the inconsistency’s or a victim’s deceit. McCord, at 41-58 notes there are different ways in which expert testimony is proffered by the prosecution to prove the truth of the claim of sexual abuse:

or

Similarly expert testimony can be used to bolster the credibility of a witness in two ways:

Thus, when utilised and assessed properly expert testimony can and will assist the court by showing that behaviour that seems inconsistent with sexual abuse may not be. The court then obtains an understanding in relation to the dynamics of the sexual offence and the very real physical and emotional impact on the woman or child are taken into account.

The Centre is of the view that it should always be borne in mind that not all women or children will display all the dynamics noted in Sexual Assault Trauma Syndrome and CSAAS. This should not be used against a complainant, as complainants’ responses to sexual assault trauma vary according to their own emotional development, personal characteristics and social environment. Therefore, Sexual Assault Syndrome and CSAAS should never be used in order to draw any negative inferences as against the complainant who does not display any or some of the defining features of these syndromes.

Syndrome evidence should furthermore not be used to prove physical or sexual abuse. It should rather be used as a tool to assist the Court in understanding the complexities involved in sexual offences, as pointed out by Satchwell J in the Holtzhauzen case.

    1. RECOMMENDATION

The recommendation contained in the Draft Bill at Section 17 should be adopted for the reasons set out hereinabove. Regulations to the act, alternatively, guidelines for Prosecutors should, however, also be enacted in order to deal with aspects such as expert evidence and the need to assess expert evidence in relation to the impact of sexual offences on complainants.

It has been argued that it is not necessary to legislate in relation to expert evidence as the mechanisms are already in place in order to deal with evidence of the impact of sexual offences. In this regard, it should be noted that there is currently no obligation on the State to adduce such evidence or for the Court to consider same. The matter is entirely discretionary. Furthermore, bearing in mind the problems in relation to conflicting judgments regarding the admissibility of such evidence, it is desirable for legislation to specifically allow for evidence in respect of the impact of sexual offences. The wording thus needs to be altered to create a mandatory duty to adduce such evidence:

Evidence of the surrounding circumstances and

impact of sexual offence

17. Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant must be adduced at criminal proceedings where such offence is tried in order to prove-

    1. whether a sexual offence is likely to have been committed-
    2. (i) towards or in connection with the person concerned;

      (ii) under coercive circumstances referred to in section 2(3)

    3. for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person concerned.

5. section 18

5.1 RULES OF CORROBORATION

As a starting point it is imperative to note that the rule of corroboration is not a statutory requirement in South African law. In fact, the opposite view forms part of Section 208 of the Criminal Procedure Act, which provides that an accused may be convicted on the evidence of a single witness. Corroboration has however, become a rule of practice and has been consistently applied by our Courts. Even if it is conceded that sexual offences cases do not require 'corroboration' as such, and that there is no specific rule of law requiring this, how is it possible to ensure that the Courts stop applying rules of corroboration?

Some Courts simply require corroboration, whilst others merely warn themselves to be alert to the special problems that may arise in sexual cases, not being that women complainants are prone to lie, but that it is often more difficult to establish the truth in sexual cases compared to cases where crimes such as theft are involved.

The aforegoing is problematic particularly in the context where a complainant is a child and/or a single witness where the Court has to apply in effect three cautionary rules, which are all overlapping to some extent.

This is illustrated by the case of S v Ngxumza and Another where the Court held as follows:

"A child has not developed the subtlety of logical reasoning and is not alive to fallacies in reasoning. In the mind of a child there is not a clear demarcation between fact and inference. The court should examine the evidence of a child very carefully to determine whether that evidence is clearly based on fact, or whether the child is drawing inferences and describing them as facts. Many children who testify have been traumatised by the events they testify about. Such trauma may cause the child not to be able to look at the events objectively. It is always dangerous to rely on the uncorroborated evidence of a child. That does not mean that a court can never convict on the evidence of a child. Corroboration can be found in the evidence of another child … Corroboration can also be found in the untruthful evidence of the accused if those lies cannot be explained for another reason … Especially lies directly connected to evidence material to the commission of the offence or identification will be important."

From the aforegoing it is apparent that our Courts often look for corroboration and this may lead to unfavourable and unjust results in the context of sexual offences. Schwikkard points out that the Courts often look for corroboration even though it is not formally required by law. We submit that although it may be questioned whether there is a need for legislative intervention considering that there is no legislation, which requires a court to look for corroboration, it is useful to consider what other jurisdictions have done in this regard as the reality often appears to be that courts do in fact look for corroboration.

5.2 COMPARATIVE JURISPRUDENCE

New Zealand amended its law of evidence in 1985 by inserting section 23AB into the Evidence Act of 1908. In terms thereof where a person is tried for a sexual offence, no evidence of corroboration shall be necessary for that person to be convicted. As pointed out by the Law Commission in its report the corroboration requirement has similarly been abolished in Canada and in all American States.

5.3 RECOMMENDATION

Whilst the rule of corroboration concerning unsworn evidence of a witness is not a statutory requirement in South African law it is firmly entrenched in practice, thus necessitating legislative intervention. The Bill deals with corroboration in section 18 and it is the respectful submission of the Women’s Legal Centre that the section should remain in the final Bill as currently formulated for the reasons set out above.

 

5.4 the cautonary rule

5.4.1 INTRODUCTION

The cautionary rule is a rule of practice that aims to assist judges in assessing evidence. It requires judicial officers to exercise caution before adopting the evidence of certain witnesses on the ground that the evidence of such witnesses is inherently potentially unreliable. The rule thus requires the presiding officer to cautiously regard the evidence of children, complainants in sexual offence cases and accomplices. The cautionary rule has its root in ancient legal writings and has been adopted by our judiciary. However, subsequent to the enactment of the Constitution, its validity and the rationale for the rule has been questioned.

More recently, the Supreme Court of Appeal pronounced on the issue and declared the rule to be based on "irrational and outdated perceptions". What remains is to analyse whether in fact the cautionary rule has been abolished by this judgment and what the effect of the judgment has been to date.

We propose dealing with the judgment and its effect in this chapter before making recommendations in respect of section 18 of the Bill.

5.4.2 THE SUPREME COURT OF APPEAL LAYS DOWN THE LAW – OR

HAS IT?

In the case of S v J the appellant who had been convicted of attempted rape and sentenced accordingly, appealed against both his conviction and sentence. It was argued before the Court that the trial court had misdirected itself in not truly applying the cautionary rule as the magistrate had simply paid lip service to the rule.

The state argued that the basis, meaning and ambit of the rule should be revisited as it amounted to discrimination against women, was unnecessary and unfairly increased the burden of proof resting on the State in cases involving sexual offences.

Olivier JA analyses the rule and its basis and concludes that it has been recognised in a number of jurisdictions that the very foundation of the rule as it applied to complainants in sexual offence cases was discriminatory. In this regard he endorses the Court of Appeal’s decision in England in the case of R v Makanjuola, R v Easton where Lord Taylor CJ had the following to say:

"…[W]e have been invited to give guidance as to the circumstances in which, as a matter of discretion, a Judge ought to in summing up to a jury to urge caution in regard to particular witnesses and the terms in which that should be done…Whether, as matter of discretion, a Judge should give any warning and if so its strength and terms must depend upon the content and manner of the witnesses evidence, the circumstances of the case and the issues raised…"

Lord Taylor CJ goes on to formulate guidelines the third of which Olivier regards as important:

"In some cases, it may be appropriate for the Judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it be necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestions by cross-examining counsel."

It is significant that Olivier JA emphasises the latter portion of the quote and it suggests that the cautionary rule may still be applied provided an evidential basis is laid and it is not done as a matter of course. This is in line with and informs his conclusion:

"In my view the cautionary rule in sexual assault cases is based on an irrational and out-dated perception. It unjustly stereotypes complainants in sexual assault cases (overwhelmingly women) as particularly unreliable. In our system of law, the burden is on the State to prove the guilt of an accused beyond reasonable doubt – no more and no less. The evidence in a particular case may call for a cautionary approach, but that is a far cry from the application of the general cautionary rule."

[My emphasis].

The judgment seems to indicate that the cautionary rule may still find application in certain sexual offences and thus the rule has clearly not been abolished. All that the judgment achieved is that the obligation previously imposed upon judicial officers has been removed. They need not as a rule apply caution to the evidence of complainants in sexual offence cases, but they may, should the circumstances warrant its application.

Thus, in the final analysis the Court finds that the "magistrate was not obliged to apply such rule." No mention is made anywhere in the judgment that the cautionary rule shall henceforth be abolished. It is not declared to be unconstitutional or contrary to the principles enunciated in the Bill of Rights. This creates some loopholes as illustrated hereunder.

5.4.3. THE AFTERMATH OF THE OLIVIER JUDGMENT

Subsequent to the Olivier judgement our courts have had an opportunity to deal with the decision and apply its principles. This has brought about some interesting and conflicting decisions.

In the decision of Director of Public Prosecutions v S the Transvaal Provisional division had to deal with the cautionary rule in relation to the evidence of children in sexual offences cases. The court applied the Olivier judgment and concluded that whilst the State has to prove the guilt of an accused beyond all reasonable doubt, in doing so, the evidence in a particular case may call for a cautionary approach and that approach would depend on the facts of the case. The Court found that:

"It does not follow that a court should not apply the cautionary rules at all or seek corroboration of a complainant’s evidence. In certain cases caution, in the form of corroboration, may not be necessary. In others a court may be unable to rely solely on the evidence of a single witness."

The same is illustrated by the decision in S v M where the Court accepted that even though the cautionary rule is based on out-dated and irrational perceptions, it may still be applicable and evidence is some cases may call for a cautionary approach. The discretion to apply the rule thus remains, hence the survival of the rule.

Had the cautionary rule been declared unconstitutional the discretion to apply same would have fallen away as well. However, since this has not been done it is clear that the Olivier judgment only sought to abolish the obligatory nature of the cautionary rule.

Some jurisdictions have interpreted the decision as an abolition of the cautionary rule notwithstanding that this is not what Olivier intended. In the case of S v M Shakenovsky AJ found that the rule had in fact been abolished by the decision in S v J and states in this regard that it is "no longer our law and has been relegated to the limbo of much distinguished principles." This means that two different divisions have thus far sought to interpret the Olivier judgement in a different light and there is no certainty in our law as to how the decision will be applied henceforth.

Had the Olivier judgment set out the reasons why the cautionary rule infringed upon the fundamental right to equality and furthermore examined whether same could be justified in terms of the limitation clause the position would have been clearer. The Court could then have declared the rule to be unconstitutional, as done by the Namibian High Court in S v D (albeit obiter) and in the final analysis the rule could have been abolished. Since this has not happened legislative intervention is warranted in order to finally lay to rest the cautionary rule.

5.4.5 RECOMMENDATION

A court has as its primary duty the duty to establish the credibility of witnesses. This means that an abolition of the cautionary rule will in no way leave the Court with no mechanism to deal with the evidence of unreliable witnesses. The basic principles and rules of evidence would still apply.

For the above reasons the Women’s Legal Centre recommends that Section 18 of the Bill in relation to abolishing the cautionary is adopted. The Chapter dealing with the cautionary rule in the Law Commission’s Discussion Document is specifically endorsed by the Centre.

Therefore, section 18 should remain in the final version of the Bill.