Transcript

Brigitta Mangale: Welcome to CDH conversations. This conversation forms part of CDH's Women's Empowerment Podcast series, a series in which several members of our firm will be discussing the importance of women's empowerment and the many ways in which CDH is dedicated thereto.

My name is Brigitta Mangale, and I'm a director in our pro bono and human rights practice. My practice's core focus is the promotion, development and protection of women's rights. I have the privilege of running several matters in this area of core focus and the privilege to partner with various public interest organisations, who are also dedicated to women's empowerment. I'm joined by Elgene Roos, a senior associate in our practice, who is also passionate about women's rights and empowerment. Welcome, Elgene. 

Elgene Roos: Thank you, Brigitta. Hi, everyone. As mentioned, my name is Elgene Roos and I work in our Johannesburg office in our pro bono and human rights practice. As Brigitta has mentioned, I am interested in women's rights, and my interest generally stems from how women are still perceived in society, and I think especially in a country like ours, where our brilliant constitution recognises the right to equality.

However, on the ground, and certainly in our laws, there is still a disconnect between what ought to be and what the lived reality is, and also the utter disregard for a women's life and woman's bodies.

But just on a fundamental human level, women truly are left behind, it seems, in all aspects. I've had the privilege throughout my career to use my skills as an attorney to try and incrementally affect change for the rights of women, through supporting advocacy initiatives, legal reform and impact litigation.

Just recently, we were able to get an order in our favor that directly impacts pregnant migrant women's rights to access free healthcare in public medical institutions, regardless of their immigration status.

And even in this case, we saw the disconnect between the governing legislation and what was happening on the ground. Because despite the national legislation expressly providing that pregnant and lactating women must receive free healthcare, we saw the absolute disregard of the law which resulted in migrant women being charged astronomical amounts in circumstances where they ought not to have been.

This is one case where impact litigation will genuinely affect the change on the ground, and also shows the importance of impact litigation.

Brigitta, with your expertise lying in women's rights, what interesting cases have you been working on that will have a direct effect on women's rights?

Brigitta Mangale: Thanks, Elgene. I will highlight one of the matters I'm running that is very close to my heart and that I think will, if successful, have a national impact and assist women who are similarly placed to the two women I represent.

And those are two sisters who in the late 1970s and 80s, suffered sexual abuse at the hands of two brothers known to their family. At the time, the sisters were very, very young girls, and as a very common consequence of sexual abuse, they were absolutely gripped by feelings of shame, embarrassment.

They suffered from low self esteem, and they feared not only their abusers, but the consequences of coming forward. And so as a result, they remained silent for decades, effectively for the rest of their lives.

All of that changed in 2018 when they came to learn of the Constitutional Court's decision in the Frankel case. And it's this moment that is a shining example of how developments in the law are meant to reach society, and how, when they reach society, they can really deliver an important message of legal recognition of a lived experience.

The Frankel case declared Section 18 of the Criminal Procedure Act invalid and unconstitutional, to the extent that it distinguished between sexual offenses for purposes of prescription where the laying of criminal charges is concerned. The outcome of that case was to entirely do away with prescription in the context of criminal charges that are rooted in sexual offense. And importantly, other than it being a powerful legal development, it is a perfect example of how the law can empower members of society.

When my clients heard of that development, it said to them, the law is starting to recognize and provide space for my lived experience and the lived experience of so many victims of sexual abuse.

In other words, the law is starting to recognize that every victim of sexual abuse is going to have a different experience in their healing journey. And part of that is, how long it will take for them to have the courage to come forward and pursue legal action.

And so, empowered by the Frankel decision, the sisters indeed have lodged criminal charges against their abusers, and about a year later approached me to consider whether there was a damages claim to be pursued, based on the same incidents.

And where we've landed now is that we've launched a damages claim under the current legal framework. But part of our proceedings also includes a challenge to section 12(4) of the Prescription Act, which is relevant to their damages claim.

At the moment, section 12(4) says that a victim of sexual abuse, prescription applies to that civil damages claim from the time at which the victim of sexual abuse comes to the appreciation that a wrong was done against her.

And once that moment has occurred, then a three year clock begins to run, and after that three year period, the door is closed.

Now, the position that we've put forward is that, that is entirely inappropriate in the context of sexual abuse because it is out of step and out of touch with the readily accepted consequences of sexual abuse.

These consequences are quite apart from your standard creditor and debtor dynamic, in that:

There are psychological consequences that prevent a victim of sexual abuse coming forward. And it is nearly impossible to say how long that will take victim to victim.

And more importantly, the current construction of the law requires that a victim of sexual abuse must put evidence before the court to show why it took her so long to come forward. That in itself is a form of rights violation, a form of secondary traumatization. Because how on earth do you persuade a court, prescription being such a precise art? How on earth do you persuade a court when exactly you realized that your skirt wasn't too short or that you weren't asking for it, or that you didn't have some hand in what was done to you?

And so we've now pursued this constitutional challenge. And as I say, the hope is that it will not only assist the clients that I represent, but it will also support victims of sexual abuse around the country. Because what we are saying is, don't close the door to access to justice.

What we are not saying is, a victim of sexual abuse can take as long as she wants to come forward and simply be successful, of course not. A victim of sexual abuse will have to persuade the court that she has evidence in support of her damages claim.

All we are saying is that it cannot be the case that, in our constitutional democracy, our law closes the door where someone has, not of their own doing, but as a consequence of a harm that was done against them, taken some time to find the courage to come forward to pursue legal justice.

Elgene, I know you are, as I am, keeping a close eye on a similar case that proposes to develop our national law in a manner that will support victims of sexual abuse. Won't you tell us about that case as well, please?

Elgene Roos: Thanks, Brigitta, certainly. I think in mentioning current impact litigation, we must speak to a case that has been making waves for probably two reasons:

• One, it's a case that seeks to challenge the definition of rape, and the outcome of this case will be far reaching, no doubt.
• But secondly, because of the department's shockingly sexist response to the case itself.

So this is a case that's brought by Embrace Project, a NPO which aims to combat gender based violence, together with a rape survivor to challenge the constitutionality of the Criminal Law (Sexual Offenses and Related Matters) Act. I'll call it the Sexual Offenses Act in this podcast.

They seek to challenge the definition of rape and, by extension, consent. And so this follows the highly controversial Coko judgment, which in the high court overturned the decision made by the magistrate court, and resulted in the accused being acquitted and not having to serve time in detention.

At the heart of the matter, both in the Coko case and this matter brought by Embrace Project, is the manner in which the Sexual Offenses Act defines rape.

In terms of the Act, rape is defined as "any person who unlawfully and intentionally commits an act of sexual penetration with a complainant, without their consent". This person is then guilty of the offense of rape.

And what this definition then means is that a perpetrator of rape or sexual violence can be acquitted if they subjectively believed there was consent. This definition is therefore highly problematic, as we saw it play out in the Coko matter and also the Amos matter.

It is problematic because it leaves a survivor in the position where they must prove a subjective threshold and provide evidence as to why the perpetrator did not have the intention to commit a crime in circumstances where, objectively, the perpetrator committed the sexual offense.

It therefore creates an insurmountable barrier to secure a conviction. And essentially it will always come down to the intention of the perpetrator versus the consent given or not given by the survivor.

In response to this matter, which government is vehemently opposing, in its answering affidavit, government in one breath says that:

They recognise the brutality of rape and its consequences with the adage that the court should consider, that due to the apartheid past of South Africa, our country is a violent society and gender based violence is a byproduct of that.

And in the next breath they say that they have responded appropriately to the issue of gender based violence by enacting various legislation.

The Department of Justice and Correctional Services is therefore of the view that the current Sexual Offenses Act protects the survivor and that they must comply with the provisions of the Act when they accuse someone of sexual offense.

And further, they believe that South African Police Services is adequately trained and equipped to deal with survivors when they report a sexual offense, which honestly, is the most out-of-touch thing anyone in our country can say, even more so, a high level official, especially because of the high statistics of rape and sexual offenses committed in our country on a daily basis.

But, also, given the statistics on how many of those crimes are in fact not reported because there is no trust in our police services and there is no safe space to report crimes.

So, in conclusion, despite the out-of-touch position of our government, I think that what was more disturbing in its opposition to this case was the fact that a man representing a government department, under oath stated that, "The applicants in this matter are being driven, essentially, by their hate toward men and that they are using their emotions to further their own agenda." Which is, frankly, very shocking.

But I think this is indicative of the manner in which society views women and issues around sexual offenses. And given this stance, Brigitta, why do you think it is important to continue challenging legislation, despite the fierce opposition received by you in your matters and also the Embrace Project in this litigation?

Brigitta Mangale: Thanks, Elgene. I think in answering that, it's helpful to highlight some of the rights that are referred to in my case and in the Embrace Project's application.

These two matters highlight how current legislation poses a threat to the rights to equality, dignity, access to court, privacy, and the freedom and security of the person, just to name a few.

But a further constitutional provision that we must not lose sight of, is the section 7(2) obligation on the State to respect, protect, promote and fulfill these rights.

Now, fierce opposition is no excuse for lawyers to shy away from their unique opportunity to hold the state accountable.

All of these rights that I've referred to are some of the rights that we hoped to achieve and that we hoped to uphold when we queued to vote for the first time 30 years ago. And given how fiercely we fought to build our democracy, we cannot now give up the fight in reshaping that democracy, to getting it back to what we hoped to achieve 30 years ago.

And as I say, lawyers are uniquely placed to hold the State accountable and to develop some of these constitutionally enshrined rights.

And so I'm afraid we simply have to anticipate fierce opposition. Notwithstanding how out-of-touch and out-of-step it might be. That cannot be a reason for us to shy away from our opportunity to develop our democracy into what it was intended to be.

Elgene, as we close, please would you share with us your thoughts on how our practice and CDH is upholding some of the constitutional themes that we've identified?

Elgene Roos: Yes indeed, Brigitta. I think that despite the noise, I agree that it is imperative that we continue to forge ahead and fight for the most vulnerable, by holding the state to account and ensure that they carry out their mandates and meet their constitutional obligations.

And I think it's important that a practice like ours, that has access to resources, continue pursuing litigation of this nature and also continue partnering with civil society organisations, to ensure access to justice to the most poor and marginalized in society.

I think that CDH recognises that its obligation to continually be a responsible corporate citizen and that, given its large footprint, the impact it can make in ensuring our constitutional values are upheld. So we continually engage the public on issues that they may face through staffing various clinics, and through ensuring that we support public interest organisations through impact litigation. But we also engage the public through our email query system, where anyone from the public can write to us on a legal issue.

Through these initiatives, CDH continues to try and uphold the constitutional themes identified by you, Brigitta, and through this we try and make a meaningful impact every day.