An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
After men assault, sexually abuse, or rape women, they often try to turn the tables on their victims. Such men know instinctively that attack is the best form of defence, and that they can exploit their social status and privilege as men as well as their (relative) economic power to put their victims on trial in the court of public opinion. This works even better when you are a politically powerful man and you enjoy the support of a powerful organisation (as Danny Jordaan and Mduduzi Manana do). If you are a violent man, you often win, even when you lose.
The recent behaviour of Danny Jordaan, the president of the South African Football Association (SAFA) (who stands accused of rape and then falsely smearing his accuser), and Mduduzi Manana, ANC Parliamentarian and convicted women abuser (who recently offered a bribe to his domestic worker to convince her to withdraw charges of assault against him) reminds us why women often find it so difficult to secure criminal convictions against their abusers.
As always, the problem of power looms large.
There is, of course, the obvious fact that certain men use their physical strength (or their access to murderous weapons and their willingness to use these) to assault or kill those who they disagree with or dislike, who have displeased them in some or other way, or over whom they wish to assert their desired dominance and power. Although accurate statistics are not available, it may be that men are more likely to assault and murder other men than they are likely to assault and murder women, and that men-on-men violence thus occur more often than men-on-women violence.
But this is not the complete picture.
Men who assault women often use their social power and status as men (often as men with relatively disproportionate access to wealth and political or societal influence) to try and discredit their victims.
It is not controversial to state that because of the way in which patriarchy is embedded in our society, men as a group are privileged relative to women. While not all men are privileged to the same degree (just as not all white people are privileged to the same degree), us men all remain privileged relative to women. Even if we are gay, or black, or poor we remain men and enjoy some of the unearned privileges that men enjoy merely because society is structured in ways that privilege men vis-à-vis women.
It is therefore not surprising that Danny Jordaan (after first saying he will not comment on the matter) later launched a full-frontal attack against Jennifer Ferguson who accused him of raping her. (As an aside, I deliberately avoid using terms like “alleged rape”. You either believe Danny Jordaan or you believe Jennifer Ferguson. I believe Jennifer Ferguson. I hope the court believes her too.) Of course, Jordaan’s attempt to discredit Ferguson backfired spectacularly when it turned out that “leaked emails” on which he relied to try and discredit Ferguson were fabricated.
Jordaan also used his power and access to wealth to intimidate and harass Ferguson by claiming that he laid a charge of defamation against her. Once again, we see how power operates here to the detriment of the complainant and in favour of the accused. Jordaan is wealthy and powerful, so he uses the legal system and his access to it to try and silence his accuser. This must be extremely traumatic for Ferguson. But imagine if Ferguson was not herself well known, white, and middle class. Imagine how much more intimidating and traumatic Jordaan’s intimidation and harassment would then have been for his accuser.
Which brings us to Mduduzi Manana, whose accuser is far less powerful than Ferguson. Like Jordaan, Manana used his political clout and economic power to silence Christine Wiro, who accused him of assaulting her. She is a domestic worker who was employed by Manana. She is also a Zimbabwean citizen. To put it rather bluntly: she is the ideal victim for a serial abuser because of her relative lack of social and economic power.
Manana is reported to have threatened Wiro with deportation to Zimbabwe because he was an influential politician. “I’m a politician‚ I have connections. I will deport you,” he is reported to have told her.
Then, after she laid a charge of assault against him, Manana’s sister offered money – in essence, a bribe – to Wiro. But Manana and his sister made the mistake of doing so in front of a journalist. The journalist, Penwell Dlamini, (in whose presence the bribe was offered) writes that when the offer of the bribe was not immediately accepted, Manana’s sister turned to him (Dlamini) to appeal to him. The report then continues:
Looking directly at me, she said, speaking in a mix of Zulu and Xhosa: ‘Please listen, Buti. We will give her money. We will give all of you here money, individually. Please consider our request. My brother is a politician and he does not need this. We are black people, we can’t be doing this to each other.’
A telling detail, this. When her appeal to the accused woman did not bear fruit, Manana’s sister turned to the man standing next to her and offered the bribe to him. This is the logic of patriarchy: men supposedly have influence over women and ultimately decide on behalf of women whether they should pursue charges of assault. Men count. Women not so much.
Then, a day later, after charges were withdrawn, Manana issues a statement claiming (and I take this claim with a dollop of salt) that he has instructed his lawyers to pursue a case of defamation against Wiro. If it sounds familiar, it is because this is exactly out of Danny Jordaan’s playbook.
As was the case with Jordaan, this story alerts us to the ways in which power can silence accusers and shield perpetrators from the consequences of their actions. In the case of Manana, power works on a multiplicity of levels. The differences in power between the accused and the accuser flows from the fact that Manana is a man in a patriarchal world and his accuser is a woman. It also flows from the fact that he is wealthy and can offer a bribe, while she is not wealthy. It further flows from the fact that he is a politician who belongs to (and is being supported by) a powerful political organisation, while she is a vulnerable immigrant.
But power also operates in the criminal justice system in ways that tend to protect men who assault women, while exposing women who are assaulted by men to potential harm. While the formal legal rules applicable to cases in which women accuse men of sexual assault have been amended to reduce this potential harm to accusers, this does not mean that women accusers do not remain at a disadvantage vis-à-vis the men they accuse of sexual assault.
Let me explain. In the past, male privilege was formally embedded in legal rules that applied to cases of sexual assault and rape in at least two distinct ways.
First, until 1998 there was an obligation on our courts to treat the evidence of a complainant in a sexual assault case with caution. The cautionary rule embedded male privilege into a formal legal rule of evidence. It was based on the irrational assumption (which served the interests of the accused in sexual assault cases) that women are likely to make false accusations against men who sexually assault them.
Given the manner in which women who do accuse men of sexual assault are often vilified and humiliated by those who sexually abused them (and by their legal representatives – as anyone who followed the Jacob Zuma rape trial would recall), it is clear that this assumption that women are likely to accuse men falsely of sexual assault is preposterous. But the male judges and male legislatures who devised and enforced this rule for many years saw it differently.
This cautionary rule was formally abolished 1998 by the Supreme Court of Appeal (SCA) in S v Jackson. Section 60 of the Sexual Offences Act of 2007 confirms this, stating that:
Notwithstanding any other law, a court may not treat the evidence of a complainant in criminal proceedings involving the alleged commission of a sexual offence pending before that court, with caution, on account of the nature of the offence.
However, courts still hold that the evidence of a complainant in a sexual assault case can be treated with caution – as long as this caution is not based purely on “account of the nature of the offence”. This means that the danger remains that a sexist presiding officer will treat the evidence of the victim of sexual assault with caution based on some other (perhaps irrelevant) considerations. Formally the rule has been abolished, but the fear that it lives on informally, is one that dissuades many women who have been sexually assaulted from pressing charges.
Second, in the past section 227 of the Criminal Procedure Act placed little if any restrictions on the admissibility of evidence about the sexual history of the complainant in a sexual assault case. This meant that a complainant ran the risk of being slut shamed and discredited if they had ever dared to have sex.
The underlying assumption behind these rules were that no decent women engaged in sexual intercourse outside of marriage. The double standard embedded in this rule was that the sexual history of the rapist was never raised. In a patriarchal world a man who has had several sexual partners is regarded as having done the sort of thing that men do. A woman who has had several sexual partners is considered by many to be beyond the pale.
Formally section 227 has been amended, to protect complainants in sexual assault cases. Now, evidence of previous sexual history would only be allowed where leave of the court to lead such evidence was sought and granted. The court would only grant leave to lead such evidence if relevance was established or unless prior sexual history evidence has been introduced by the prosecution.
But while this amendment provides important formal protection for a complainant, a presiding officer retains a discretion and if the presiding officer is sexist, (as seems to have been the case in the Zuma rape trial) then the protection may well turn out to be illusory.
Men, we have a problem. The problem is some of us men. What are we going to do about it?BACK TO TOP