1. Why do we have sexual offences courts?
South Africa has had sexual offences courts since 1993, the first of which was established at Cape Town’s Wynberg regional court.
This court was part of a pilot project that aimed to reduce “the insensitive treatment of victims” and improve conviction rates, according to a 2013 task team report.
The ministerial advisory task team, charged with investigating the re-establishment of sexual offences courts following a moratorium on their further roll-out and a period of decline, found an urgent need for them. “Victims of sexual offences have special needs that often require specialised skills that can be developed only from dedicated court personnel operating at a specialised court fitted with specialised equipment.”
2. What should a sexual offences court have?
In 2013 the ministerial advisory task team developed a model for sexual offences courts, which outlines the desired features. These include:
- A designated courtroom equipped with CCTV and sound equipment and/or one-way glass
- A special room from which the victim will testify, which must have minimal furniture and decoration
- A private waiting room and/or play area for victims and their families, which must be informally arranged
- Victim support services
- Specialist interpreters trained in child development and those working with the mentally disabled
- Availability of intermediaries.
Steve Mahlangu, the department of justice and constitutional development spokesperson, says the model was “formally adopted” by former minister Jeff Radebe in August 2013.
The department distinguishes between “hybrid” and “pure” sexual offences courts, based on the extent to which these courts meet the requirements. “Once a court is established as a sexual offences court, it means it has met the requirements, including the personnel required in the form of a magistrate, two prosecutors, a court preparations officer and an intermediary,” Mahlangu says.
“Hybrid sexual offences courts are termed as such on the basis that the court has some of the features of the sexual offences court model but is not 100% compliant.”
Jeanne Bodenstein, advocacy coordinator for Cape Town-based NPO Rape Crisis, says the model’s requirements were in many cases “quite unattainable” because of the costs.
Minimum standards for the establishment of sexual offences courts were developed in 2017, says Mahlangu.
The draft minimum standards will be aligned with the regulations for sexual offences courts “before they are released for implementation”. “As soon as the regulations are finalised and approved, the department will be required to establish [sexual offences courts] in compliance with the specifications set by the regulations.”
But, the department says, nothing would prevent it from continuing to establish hybrid courts.
Bodenstein says the process of drafting the regulations involves considering the intentions behind the requirements and determining “how can we achieve those aims in a way that is financially [and otherwise] attainable”. She gives the example of the need to have separate waiting rooms for adult and child complainants. The intention is to have a space where complainants would not run into the alleged perpetrator or their family. It might be possible to still achieve this by providing a single room.
3. How many courts have been upgraded since 2013?
When the task team recommended that sexual offences courts be re-established, the department identified 57 courts for upgrades which, Mahlangu says, were completed before the end of the 2016/2017 financial year.
But of the 57, 30 are hybrid courts, which don’t fully comply.
The second phase of the project involves upgrades to 106 courts in 10 years and “largely deals with court houses that have infrastructural restrictions, such as buildings with inadequate space to fit the full specifications”.
The department says 74 courts were upgraded between 2013/14 and 2017/18 and it is expected to upgrade 14 more by the end of this financial year.
4. Are sexual offences courts working?
The task team report identified an increase in conviction rates and a decrease in turnaround times among the courts’ “main achievements”.
More recently, a study on case outcomes in five sexual offences courts, found that cases were, on average, postponed 10 times. “Human elements” played a role in these postponements, as well as when cases were withdrawn or struck off the role or when the accused were acquitted.
The 2016 USAid-funded study’s co-author, Dr Aisling Heath, says a shortage of intermediaries to assist complainants during testimony creates problems. “Anybody who is too traumatised to testify in court can ask the prosecutor to apply for an intermediary. Once you’ve applied for the intermediary and the intermediary doesn’t show up, that case cannot go on,” she says.
The availability of interpreters is another “key problem”.
Heath says their research found that problems identified in the 2013 task team report remained “very much a part of the everyday running of the courts” in 2016.
And, although the sexual offences courts model is “world class, the problem is the implementation, the accountability and the regulation of the model”.
Two Unicef-funded victim satisfaction surveys, conducted by the Child Witness Institute on behalf of the department, found higher levels of satisfaction with the infrastructure, personnel and services at sexual offences courts than at regional courts.
Institute chief operations officer Karen Hollely says victim satisfaction stood at a “very low” 48% in the baseline study, in which 78 adult and 78 child victims of sexual violence participated in 2015/16 in nine regional courts – one in each province. In the second survey, conducted in 2017/18 among 59 adult and 65 child victims in nine sexual offences courts, victim satisfaction stood at 69%.
While this research shows that the victims were more satisfied with sexual offences courts, Hollely says there is “room for improvement”.
Among the second study’s findings was that all the elements of the sexual offences courts model aren’t equally important to victims.
The way court staff treat victims was crucial. “We found the attitude of court personnel or anyone else they came into contact with was the most important for them.”
Mahlangu says the report on the victim satisfaction survey “has not been published formally for public consumption”. A request for a copy was not granted by the time of publication
|This factsheet is part of a journalism partnership with South African newspaper City Press. The project aims to ensure that claims made by those in charge of state resources and delivering essential services are factually correct. In the run-up to the country’s national and provincial elections next year it will be increasingly important that voters are able to make informed decisions. This series aims to provide voters with the tools to do that.|
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