Introduction: The Scourge of Domestic Violence in South Africa
Domestic violence remains a pervasive and deeply troubling issue in South African society, as highlighted by Sheena Swemmer in her insightful analysis of recent legal cases Swemmer S “S v P – The Abuse of Protection Orders to “Gag” Victims of Rape” PER / PELJ 2023(26) – DOI. The country grapples with alarmingly high rates of gender-based violence, creating a culture of fear and silence among survivors. This toxic environment is further exacerbated by a criminal justice system that often fails to adequately protect and support those who have experienced domestic abuse.
Swemmer’s examination of cases such as S v P 2022 2 SACR 81 (WCC) brings to light a disturbing trend: the weaponisation of legal processes by alleged perpetrators to silence their victims. This misuse of the law serves to compound the trauma experienced by survivors and creates additional barriers to justice in a system already fraught with challenges.
The author argues convincingly for the adoption of a feminist lens when approaching domestic violence cases in the South African legal system. This approach would require judges and legal professionals to consider both the personal circumstances of the survivor and the broader societal context in which domestic violence occurs. By doing so, the courts could better understand the complex factors that influence a survivor’s decisions regarding reporting abuse and seeking justice.
Swemmer’s work underscores the urgent need for reform in how the South African legal system handles domestic violence cases. It calls for a more nuanced and contextualised approach that recognises the myriad challenges faced by survivors, from the fear of retaliation to the often-justified lack of faith in the criminal justice system’s ability to deliver justice.
As we delve deeper into Swemmer’s analysis, it becomes clear that addressing domestic violence in South Africa requires more than just legislative change. It demands a fundamental shift in how society and the legal system perceive and respond to survivors of abuse, ensuring that their voices are heard, and their experiences validated.
The Misuse of Legal Processes to Silence Survivors
Swemmer’s analysis reveals a disturbing trend in South African domestic violence cases: the misuse of legal processes by alleged perpetrators to silence their accusers. This phenomenon is exemplified in the S v P case, where the respondent sought a protection order under the Protection from Harassment Act 17 of 2011 to prevent the appellant from disclosing her alleged rape.
This abuse of legal mechanisms designed to protect victims is not isolated. Swemmer highlights similar cases, such as Mdlekeza v Gallie (WCHC) (unreported) case number 15490/2020 of 20 April 2021 and Booysen v Major (WCHC) (unreported) case number 5043/2021 of 30 August 2012.In these instances, alleged perpetrators attempted to use defamation claims and interdicts to prevent survivors from speaking out about their experiences.
The Harassment Act, originally intended to protect vulnerable individuals, particularly women, from gender-based violence, is being manipulated to achieve the opposite effect. This misuse of the law echoes similar tactics seen with the Domestic Violence Act 116 of 1998, where perpetrators sometimes file counter-applications to intimidate victims.
Swemmer argues that courts must be vigilant in identifying these attempts to weaponise the legal system. She emphasises the need for judges to understand the context in which domestic violence occurs and the various barriers survivors face in seeking justice. This understanding is crucial to prevent the legal system from inadvertently becoming complicit in silencing victims.
The author draws attention to the problematic reasoning sometimes employed by courts, as seen in the Mdlekeza case. Here, the court drew negative inferences from the survivor’s delay in reporting the alleged assault, failing to consider the complex reasons why victims often hesitate to come forward.
Swemmer contrasts this approach with the more nuanced understanding demonstrated in the S v P appeal, where the court recognised that the absence of a criminal conviction does not negate the truth of a survivor’s experience. This judgement acknowledged the well-documented reasons why many rape victims do not report to the police, showing a more contextualised approach to domestic violence cases.
The misuse of legal processes to silence survivors extends beyond protection orders and defamation claims. Swemmer notes instances where alleged perpetrators have sought to control survivors’ narratives, even suggesting they should have editorial rights over how victims describe their experiences. This attempt to police survivors’ speech is a clear infringement on their right to tell their own stories.
Swemmer’s work underscores the urgent need for legal reform and judicial education to prevent the abuse of legal processes in domestic violence cases. She argues for a shift in how courts evaluate evidence in these cases, moving away from outdated stereotypes about “ideal” victims and towards a more nuanced understanding of the complexities of domestic violence.
The author’s analysis also highlights the importance of safe spaces for survivors to share their experiences, whether through support groups or social media platforms. These outlets can be crucial for healing and raising awareness, especially when the formal justice system fails to provide adequate support or protection.
Ultimately, Swemmer’s examination of these cases reveals a troubling pattern of legal manipulation that threatens to compound the trauma of domestic violence survivors. Her work calls for a reimagining of how the legal system approaches these cases, emphasising the need for a feminist, contextualised approach that prioritises the voices and experiences of survivors.
A Feminist Lens: Contextualising Domestic Violence Cases
Swemmer advocates for the adoption of a feminist lens in adjudicating domestic violence cases, an approach that considers both the personal and societal contexts surrounding these incidents. This perspective is crucial in understanding the complexities of domestic violence and the myriad reasons survivors may not immediately report abuse or seek legal recourse.
The feminist lens, as proposed by Swemmer, requires judges to examine and reflect on how gender bias and stereotyping permeate societal structures, including the judiciary itself. It demands consideration of these factors from the position of marginalised individuals, such as women, members of the LGBTQIA+ community, and children.
Swemmer’s analysis reveals that even within the judiciary, gender ideology can significantly influence decision-making. She references research by Miller, which found that judges’ support for traditional gender roles predicted disparities in both child custody and employment discrimination cases. This underscores the need for judicial education and self-reflection to combat inherent biases.
The author draws attention to the persistent reliance on gender stereotypes and rape myths in some South African courts, despite legislative efforts to prohibit such discriminatory practices. She cites examples of magistrates focusing on survivors’ previous sexual history or employing the cautionary approach when assessing credibility, practices that have been explicitly banned in legislation such as the Criminal Procedure Act 51 of 1977 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
Swemmer argues that the feminist lens should encompass both the personal and political aspects of domestic violence, drawing on Carol Hanisch’s seminal statement that “the personal is political”. This approach requires judges to consider not only the individual survivor’s experience but also the broader societal context of gender-based violence in South Africa.
In practical terms, Swemmer suggests that judges should explore the survivor’s experiences at the time of the violation and their subsequent attempts to seek help, both through formal channels like police reports and informal routes such as confiding in friends or seeking counselling. This comprehensive view allows for a more nuanced understanding of the survivor’s actions and decisions.
The author emphasises the importance of considering societal factors such as the high rates of sexual violence in South Africa, the low conviction rates for these crimes, and the various barriers to justice faced by survivors. These barriers include the culture of silence surrounding domestic violence, financial dependence on abusers, and pressure from family or community members to drop charges.
Swemmer contrasts the application of this feminist lens in different cases. In the S v P appeal, the court demonstrated a more contextualised understanding, acknowledging the various reasons why survivors might not immediately report abuse. This approach stands in stark contrast to the reasoning in the Mdlekeza case, where the court drew negative inferences from the survivor’s delay in reporting, failing to consider the complex factors that might influence such a decision.
The author argues that adopting a feminist lens does not mean automatically siding with the alleged survivor. Instead, it promotes a more comprehensive evaluation of the motives behind public disclosures of abuse and a better understanding of why survivors might give contradictory evidence or struggle to recall specific details of traumatic events.
Swemmer’s work highlights the transformative potential of this approach in domestic violence cases. By applying a feminist lens, courts can better identify instances where legal processes are being misused to silence survivors and can make more informed decisions that take into account the full complexity of domestic violence situations.
The author’s call for a feminist, contextualised approach to domestic violence cases represents a significant challenge to traditional legal thinking. It demands that the judiciary move beyond a narrow focus on legal technicalities and consider the broader social and personal contexts in which domestic violence occurs. This shift in perspective has the potential to create a more just and equitable legal system for survivors of domestic abuse in South Africa.
Barriers to Justice for Survivors of Domestic Violence
Swemmer’s analysis illuminates the multifaceted barriers that survivors of domestic violence face when seeking justice in South Africa. These obstacles permeate every level of the justice system, from initial reporting to final adjudication, creating a daunting landscape for those attempting to escape abusive situations.
One of the most significant barriers identified by Swemmer is the high rate of attrition in rape cases throughout the criminal justice system. Citing the South African Medical Research Council’s 2017 attrition report, she notes that of 3,952 reported rape cases, only 65% were referred for prosecution, with a mere 8.6% resulting in a guilty verdict. These statistics paint a bleak picture of the justice system’s efficacy in addressing sexual violence, potentially discouraging survivors from pursuing legal recourse.
The author also highlights the reluctance of many women to report domestic violence to the police in the first place. Referencing a 2011 study in Gauteng, Swemmer reports that only 1 in 25 women who experienced rape actually reported it to law enforcement. This hesitance stems from various factors, including deeply problematic attitudes and practices within the police force that can lead to secondary victimisation.
Swemmer details specific issues with police conduct, such as refusing to allow women to lay charges, incorrectly categorising rape as sexual assault, failing to provide privacy during reporting, neglecting to make arrests, and withholding crucial information from survivors. These systemic failures not only deter reporting but also undermine the credibility of the entire justice system in the eyes of survivors.
The author also explores personal barriers that survivors face, drawing on interviews conducted by Jones in 2021. These barriers include a lack of physical evidence or witnesses, fear of disbelief due to the nature of the relationship with the perpetrator, concerns about the passage of time since the incident, and apprehension about racial bias in the justice system.
Swemmer’s work underscores the impact of societal factors on a survivor’s decision to seek justice. The fear of retaliation from the perpetrator, coupled with a lack of faith in the criminal justice system’s ability to provide protection, often leads survivors to remain silent. This silence is further compounded by societal pressure, with survivors often weighing the possibility of reprisals against the statistically low likelihood of a conviction.
The author argues that these barriers make it rational for survivors to be reluctant to report their experiences. This understanding is crucial for courts to consider when evaluating cases, as demonstrated in the S v P appeal. Here, the court acknowledged the complex factors that influence a survivor’s decision-making process, moving away from the problematic assumption that delayed reporting indicates false accusations.
Swemmer also highlights the financial barriers that many survivors face, particularly when the abuser is the primary breadwinner. The economic dependence of survivors on their abusers creates a significant obstacle to seeking justice, as leaving the relationship or pursuing legal action could result in financial ruin.
The author draws attention to the cultural and community pressures that can prevent survivors from coming forward. In some cases, survivors are dissuaded from reporting by family members or community leaders who prioritise maintaining social harmony over individual justice. This pressure to remain silent can be particularly strong in close-knit communities or where traditional gender roles are deeply entrenched.
Swemmer’s work also touches on the psychological barriers that survivors face. The trauma of abuse can lead to memory issues, difficulty in providing consistent accounts of events, and a reluctance to relive painful experiences through the legal process. Unfortunately, as seen in cases like Mdlekeza, these psychological effects of trauma are sometimes misinterpreted by courts as indicators of dishonesty, further victimising survivors.
The author argues that understanding these barriers is crucial for developing a more effective and compassionate legal response to domestic violence. She advocates for a shift in how evidence is evaluated in these cases, moving away from outdated stereotypes about “ideal” victims and towards a more nuanced understanding of the realities of domestic violence.
Conclusion: The Need for a Contextual Approach in Domestic Violence Cases
Swemmer’s comprehensive analysis of domestic violence cases in South Africa underscores the urgent need for a contextual approach in the legal system. This approach, grounded in feminist jurisprudence, recognises the complex interplay of personal, social, and systemic factors that influence domestic violence situations and survivors’ responses to them.
The author’s examination of cases like S v P, Mdlekeza v Gallie, and Booysen v Major reveals the stark differences in outcomes when courts adopt a contextualised perspective versus a more traditional, narrow legal view. The S v P appeal demonstrates the positive impact of considering the broader context of domestic violence, acknowledging the myriad reasons why survivors might delay reporting or choose alternative means of disclosure.
Swemmer argues convincingly that this contextual approach is essential for preventing the misuse of legal processes to silence survivors. By understanding the societal pressures, personal fears, and systemic barriers that survivors face, courts can better identify attempts to weaponise the law against those it is meant to protect. This understanding is crucial in cases where alleged perpetrators seek protection orders or file defamation claims to prevent survivors from sharing their experiences.
The author emphasises the importance of judicial education in implementing this contextual approach. Judges must be aware of their own potential biases and the pervasive influence of gender stereotypes in society. Swemmer’s work highlights the need for ongoing training to help legal professionals recognise and challenge these biases, ensuring fairer outcomes in domestic violence cases.
A key aspect of the contextual approach advocated by Swemmer is the recognition of alternative forms of disclosure and justice-seeking behaviour by survivors. The author argues for the legitimacy of survivors sharing their experiences through support groups, social media, or other platforms when the formal justice system fails them. This perspective challenges the notion that the absence of a criminal complaint negates the truth of a survivor’s experience.
Swemmer’s analysis also calls for a re-evaluation of how courts assess evidence in domestic violence cases. She argues against drawing negative inferences from factors such as delayed reporting, inconsistencies in memory, or the absence of physical evidence. Instead, she advocates for an understanding of how trauma affects memory and behaviour, and how societal pressures can influence a survivor’s actions.
The author’s work underscores the need for a holistic approach to addressing domestic violence in South Africa. While legal reform is crucial, Swemmer argues that it must be accompanied by broader societal changes. This includes challenging cultural norms that perpetuate gender-based violence, addressing economic inequalities that trap survivors in abusive situations, and improving support services for those experiencing domestic violence.
Swemmer’s call for a contextual approach extends beyond the courtroom. She emphasises the importance of improving police responses to domestic violence reports, enhancing support services for survivors, and creating safe spaces for disclosure and healing. This comprehensive strategy recognises that addressing domestic violence requires a multi-faceted approach that engages all sectors of society.
The author’s analysis provides a compelling argument for the adoption of a feminist, contextualised lens in South African jurisprudence. By considering both the personal and political aspects of domestic violence, courts can deliver more just and equitable outcomes. This approach not only benefits individual survivors but also has the potential to drive broader social change, challenging the culture of silence and impunity that often surrounds domestic violence.
Ultimately, Swemmer’s work serves as a call to action for the South African legal system. It challenges courts, legal professionals, and policymakers to move beyond a narrow, legalistic approach to domestic violence and embrace a more nuanced, contextual understanding. By doing so, the justice system can better serve survivors, hold perpetrators accountable, and contribute to the broader fight against gender-based violence in South Africa.
Questions and Answers
What was the main legal issue in the S v P case? The main issue was whether the court a quo was correct in issuing a final protection order against the appellant (S) under the Protection from Harassment Act for a third party’s public disclosure of the respondent (P) as her rapist.
What Act was central to the S v P case? The Protection from Harassment Act 17 of 2011 was central to this case.
How did the Western Cape High Court rule in the S v P appeal? The Western Cape High Court found that the court a quo should not have issued a final protection order against S.
What was the court’s view on the absence of a criminal conviction in relation to allegations of rape? The court stated that the absence of a conviction does not mean that a person who committed an offence like rape cannot be called a rapist, where facts outside a criminal trial show the existence of such a fact.
How did the court interpret the purpose of the Protection from Harassment Act? The court recognised the Act as having a gendered purpose, aimed at protecting vulnerable individuals (predominantly women) from gender-based violence.
What was the court’s stance on drawing negative inferences from a survivor’s reluctance to report past experiences of sexual violence? The court criticised drawing negative inferences from a survivor’s reluctance to report, acknowledging the various barriers and complexities that survivors face in reporting sexual violence.
How did the court view the use of protection orders to silence alleged victims of sexual violence? The court viewed this as a misuse and abuse of the Protection from Harassment Act, contrary to its intended purpose of protecting vulnerable individuals.
What did the court say about the prevalence of gender-based violence in South Africa in relation to this case? The court acknowledged the high rates of gender-based violence in South Africa and the low conviction rates for these crimes as important contextual factors in understanding survivors’ actions.
How did the court address the issue of survivors disclosing their experiences on social media platforms? The court recognised the legitimacy of survivors sharing their experiences through alternative platforms when the formal justice system fails them, challenging the notion that the absence of a criminal complaint negates the truth of a survivor’s experience.
What was the court’s position on the culture of silence surrounding sexual violence? The court acknowledged that the systemic sexual exploitation of women and children depends on secrecy, fear, and shame, recognising these as barriers to reporting and seeking justice.
How did the court interpret the historical purpose of the Protection from Harassment Act? The court viewed the Act as historically intended to be gendered in nature, aimed at countering the “culture of violence” in the country and the prevalence of gender-based violence against women and children.
What did the court say about the attrition rate in sexual violence cases in South Africa? The court noted the high rate of attrition in rape cases throughout the criminal justice system, citing statistics that show only a small percentage of reported cases result in a successful conviction.
How did the court address the issue of trauma affecting a survivor’s memory and testimony? The court recognised that trauma can affect a survivor’s ability to recall all facts relating to the violent incident consistently, and that this should not necessarily be interpreted as an indication of untruthfulness.
What was the court’s stance on the use of closed groups or social media for disclosing experiences of sexual violence? The court acknowledged these as legitimate outlets for survivors to share their experiences, especially when they feel they cannot report sexual violence to the police or when formal justice systems fail them.
How did the court view the attempt by alleged perpetrators to control survivors’ narratives about their experiences? The court strongly criticised attempts by alleged perpetrators to control or have editorial rights over how survivors describe their experiences, viewing this as an infringement on survivors’ rights to tell their own stories.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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