By Barbara Whittle

At the launch of the Dullah Omar Project against Gender-Based Sexual Violence in Durban at the end of November 2013, National Association of Democratic Lawyers (NADEL) members committed themselves to –

• disseminating an information checklist to educate members of the public with regard to the importance of preserving evidence in gender-based violent crimes;
• cooperating with stakeholders such as the South African Police Service (SAPS), the DNA Project and community care-givers to compile and disseminate information documents for the public;
• empowering children so that the voices of child victims are heard through child leadership programmes;
• promoting better communication and the empowerment of vulnerable and disabled victims of sexual crimes, including the availability of sign-language interpreters in courts as well as guidelines for the cross-examination of ‘vulnerable’ witnesses where improper examination by legal practitioners should be made a disciplinary offence; and
• providing guidance to the SAPS on taking proper statements.

Opening the launch workshop of the Dullah Omar Project against Gender-Based Sexual Violence, NADEL President Max Boqwana said that, despite constitutional imperatives, which demand that children’s interests be treated as paramount, and assurances from various quarters, women and children, including infants, in South Africa were living as if they were in a war zone, where they could be violated at any moment both by strangers and those close to them. ‘This is a sign of a sick nation; this is the price we pay for our violent past; this is the price we pay for dehumanising the majority of our people; this is the price of exclusion when many in our society find themselves at the periphery; this is the price of our failure to restore dignity to many of our people.’ He asked: ‘Why must this burden of society be carried by vulnerable children, infants and women?’

In commemorating the life of and work of the late former Minister of Justice, Dullah Omar, Mr Boqwana said NADEL had celebrated his ability to merge theory and practice in a manner that was beneficial to the society that he sought to serve. ‘We are able to say that, whatever is troubling our society today, ours is not to buckle under pressure and behave as if the sun shall never shine again. Whatever our difficulties, Dullah Omar taught us that the price of freedom is eternal vigilance. We are here then to repay Dullah in a practical way; by finding ways to work side by side among ourselves and with those that are charged with that heavy responsibility of ensuring that the vulnerable in our society feel a sense of protection and comfort.’

Mr Boqwana noted: ‘Although violence against women and children is a classless phenomenon, recent gruesome incidents that shame us all seem to have occurred in environments that –

• depict extreme levels of poverty;
• are havens for drug and alcohol abuse;
• display squalid, almost inhuman living conditions;
• have absent fathers, or those present being the actual perpetrators;
• have an absence of social support structures and professionals like social workers; and
• show an absence of amenities for children.

‘None of these can even remotely be a justification for these heinous crimes, but gives us an understanding of the complex problem that we are dealing with,’ he said. He added: ‘NADEL realises that it may not be able to deal with all the challenges, but it can focus directly in an area that most of its members are particularly skilled and are able to play a role. That is to secure convictions for the perpetrators. This is important in that those that commit these offences generally do so with a view that they will never be caught or, if caught, they will never be convicted. We believe that convictions play an important deterrent effect in society, bringing closure to some of these difficult incidents but also serving as an expression of collective disgust by the community.’

Retired Constitutional Court Justice Zac Yacoob said judicial officers dealing with sexual violence cases must bring their own humanity into play. ‘We should not be misled by clever legal arguments. We must assess cases by understanding the human condition,’ he said. He added that judicial training should have aspects of the programme that focus specifically on sexual offences. In addition, he called on members of the National Prosecuting Authority to ensure that those accused of rape are properly prosecuted. Similarly, the SAPS must be trained properly to investigate cases and the evidence gathering process must be done properly and sensitively. The rights of the victim should not be juxtaposed with the rights of the accused. ‘We must go beyond moral outrage and make things better,’ he stressed.

Several speakers from the SAPS’s forensic science biology section, the National Prosecuting Authority, forensic pathologists and the DNA Project dealt with rape kits and the collection and preservation of DNA and other evidence and challenges relating to the prosecution of sexual offences cases. One of the concerns raised was the shortage and unavailability of adult rape kits in some areas of the country. There also appeared to be little or no training available to doctors who must use the newly developed rape kits. In addition, changes to rape kits without proper training of medical practitioners can cause confusion that can lead to unsatisfactory use of the kits.

After discussion, there was a general view that integrated multidisciplinary training, where all the stakeholders – including legal and medical practitioners as well as police officers – involved in the evidence collection and investigation process, would be beneficial and preferable.

Barbara Whittle, communications manager, barbara@lssa.org.za

This article was first published in De Rebus in 2014 (Jan/Feb) DR 9.