As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
When news broke that the IAAF was to investigate the sex of Caster Semenya, 800 meter athletics world champion, South Africans of all races and political persuations rightly rallied behind her. The International Association of Athletics Federations was rightly lambasted for humiliating Semenya and Julius Malema opened his mouth only to change feeth, blaming white South Africans for the sorry saga.
Far away from the cameras and the media attention another woman was thoroughly humiliated this week, but as yet Malema and all the other self-serving politicians who lovingly hogged the media spotlight during Semenya’s welcome home rally have not said anything about it. I am sure they are just waiting for the right moment to howl outrage about this scandalous event.
I am talking about the complainant in a rape case who was asked by the advocate for the accused in the Bhisho High Court this week if she had enjoyed her ordeal. When challenged he then said that women often enjoyed sex during rape. The Daily Dispatch reported this morning that:
The court had heard that three teenagers broke into the woman’s home, assaulted and tied up her husband, covered her two children with blankets and then took turns raping her. Advocate Mzwakhe Miso put the question to the victim, a 43- year-old Dimbaza woman, last week during the trial of Khotso Matloporo, 18, Sivuyile July, 19, and Siyawandisa Mbovane, 18, who were subsequently convicted of raping her .
Judge Andreas Dhlodhlo ordered Miso to halt his line of questioning. Miso apologised yesterday for making the statement. “I know women are angry at me and I apologise to women for that,” he told the Dispatch. “It is unfortunate that I cannot withdraw what I said in court but the judge did ask me to drop the question.”
The advocate said his intention was to counter the State’s submission that the woman was traumatised and to try to find mitigating factors for his clients.
Advocates obviously have a duty and a right vigorously to defend their clients – no matter how heinous the crime their clients are accused of having committed. But advocates are also officers of the court and have a duty to uphold the law and the Constitution. They also have an ethical responsibility not to abuse their power and not to act in a way that will perpetuate the most despicable and harmful stereotypes based on race, sex, gender or sexual orientation.
The suggestion that the complainant in this case somehow enjoyed the experience clearly deeply humiliated her. It also forms part of a larger narrative constructed by patriarchs (some of them sitting on the high court bench) about women’s sexuality and the right of men to wield power over women and their bodies.
According to a survey by Stats SA about 134 women per 100 000 of the total population are raped every year. This means that approximately 0,4% of women aged16 years or more are raped ever year and that 1340 out of a 100 000 women are raped in every ten year cycle. Research by the Medical Research Council among a probability sample of 1 300 women aged 15 to49 years found that only 68 women per 100000 of the population said that they had reported the rape incident to the police. This means less than half of those who had been raped actually ever report it.
This is not surprising because rape survivors who report rape are often victimised and stigmatised and have to endure the most humiliating kind of cross examination on the witness stand. The case mentioned above is just an extreme example of what happens in courts accross South Africa daily. Often public prosecutors involved in such cases do not have the experience or knowledge to protect rape complainants from vicious attack by senior advocates appearing for the defendant.
Is it not time that those women who are brave enough to report rape obtain the right to retain their own counsel who could protect them from the scurrulous attacks of opposing legal counsel during the trial? If every rape complainant were entitled to legal representation – much like the victims of human rights abuses were entitled to legal representation during the Truth and reconciliation hearings – the sexist advocates and judges involved in such cases would at least to some degree be kept in check.
Of course, it is too much to expect Julius Malema and others to take up such an issue because that might disturb the cosy patriarchal assumptions on women’s sexuality and might actually lead to the conviction of more rapists. Far easier to make a fool of yourself in front of the cameras than do anything that would actually change the lives of people who are the victims of gender violence.BACK TO TOP