Pastor Timothy Omotoso (Photo: Lulama Zenzile)
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Justice is the colour of money and the weight of numbers – which is just another way of saying that justice depends as much on the mundane art of administration, as it does on law and rights.
To understand this let’s briefly shift attention from the Eastern Cape High Court in Port Elizabeth and the trial of Timothy Omotoso, to the regional magistrate's courts where the vast majority of rape cases are heard and cameras seldom go.
The regional courts deal with a high number of criminal matters generally. Earlier this month, in a presentation to Parliament, the Department of Justice stated that the high courts placed 988 matters on the court roll and finalised 971, while the regional courts enrolled 53 309 matters and finalised 33 246 of these.
With this number of cases and all the staff they require, space is at a premium and busy magistrate's courts increasingly resemble small villages crammed higgledy-piggledy with brick buildings, zozo huts and shipping containers.
When space can’t be created in this way, its lack will have real consequences for rape matters. Testifying via closed circuit television (CCTV) is crucial for children and adults terrified by the thought of being in the same room as the accused. But this requires setting up a room separate from the court in which complainants can sit and answer the questions put to them via a head set.
Separate waiting rooms also need space. Where this can’t be found complainants must sit in the passages with everyone else and run the risk of encountering the accused (if he is out on bail) and/or his family and friends.
A specialised sexual offences court cannot be established in the absence of these facilities.
By the end of 2017/18, 74 regional courts nationally possessed some version of a specialised court, according to the Department of Justice. However, the shortage of space at busy courts has led to some specialised facilities being located at less busy courts – even though the busier courts, with a higher number of rape cases, have the greater need.
One of the aims of the specialised courts is to reduce the length of time taken to prepare and prosecute rape matters. A court dedicated solely to hearing these matters is key to this goal because it prevents rape cases from having to compete with other criminal matters for time and attention.
However, a number of sexual offences courts are not dedicated but hybrid courts, meaning that the court will also deal with other crimes (although efforts are made to keep the number of other such cases low). Again, this has to do with space. If matters are not proceeding in the dedicated court (because the witnesses have been unable to come to court, for example) then it stands idle – a sure recipe for disgruntlement and complaints in the context of crowded court rolls, case finalisation targets and case backlogs.
Prosecutors are also crucial to the creation of specialised court responses to rape. Directives issued by the National Prosecuting Authority (NPA) in 2014 stated: “Specialist, dedicated prosecutors selected on the basis of their experience, interest, skills and levels of sensitisation should deal with such matters. Preferably the same prosecutor should prosecute a matter from beginning to end.”
Prosecutors must carry out a number of tasks before a rape case is ready for trial. Complainants, for example, should be consulted within 21 days of the charge having been laid to enable the prosecutor to check the adequacy of the statement and fill in any missing gaps. It also assists the prosecutor to point the investigating officer towards other evidence needing to be gathered.
The prosecutor will need to evaluate the docket regularly in the lead-up to the trial. This may include providing ongoing guidance to the investigating officer and consulting with other witnesses, as well as the defence. Evidence such as DNA and crime scene photographs may need to be compiled and decisions made around withdrawing those matters where additional evidence or witnesses could not be located. For those matters that have become trial ready subpoenas must be readied and the complainant and other witnesses prepared for court.
At the same time, prosecutors are expected to spend a certain number of hours in court every day and meet targets around the number of cases they finalise every month. Achieving these requirements cuts into case preparation time significantly – often at the cost of consultation with the complainant.
Budget cuts have contributed still further to prosecutors’ time poverty.
In reply to a parliamentary question Justice Minister Michael Masutha reported that as at 30 September 2016, the NPA's Sexual Offences and Community Affairs Unit (largely responsible for the sexual offences courts) had a vacancy rate of 29.5%, meaning that 65 of the 220 available positions were vacant.
There is no indication that the situation has improved – or will improve. Only last week the acting head of the NPA, Silas Ramaite, told Parliament the NPA needed an additional R761m to fill over 1 000 vacancies including 244 posts deemed critical.
Justice for rape complainants cannot flourish under these conditions. New Finance Minister Tito Mboweni will be presenting the Medium-Term Budget Policy Statement in Parliament later this week. And while this is not a budget per se, the statement does provide clarity around government’s priorities and income and expenditure projections over the next few years. It will thus provide some important clues around just how much justice we can afford for the foreseeable future.
- Lisa Vetten is a Mellon Doctoral Candidate based at the Wits City Institute of the University of the Witwatersrand. This article is based on a year spent researching the prosecution of rape cases in Gauteng.
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