Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
11 February 2013

Sexwale allegations: are we serious about violence against women or not?

Yesterday the Sunday Times carried a front page article in which it reported on shocking allegations made by Judy Sexwale against her husband Tokyo Sexwale during their on-going divorce battle. Judy accuses her husband of having subjected her to “physical, verbal, mental [and] emotional abuse and cruelty.” The physical abuse aspects of the story did not cause a stir. Instead, the Sunday Times was widely mocked and criticised for publishing it on its front page. “None of our business,” many people argued. Are most South Africans so used to violence against women (recent platitudes about their abhorrence of rape notwithstanding) or is the long abolished cautionary rule in sexual offense cases still embedded so deeply in the minds of patriarchal South Africans, that Judy’s allegations of spousal abuse were dismissed out of hand as either irrelevant or untrue?

In most democracies, serious allegations by a wife that her cabinet minister husband physically abused her would create a political storm. Journalists would rush to the cabinet minister’s house to hear his side of the story. The governing party would be hounded for comment. The big newspapers would send a crack team of reporters to try and dig up information that would either verify or disprove the allegations. They would speak to friends and acquaintances of the couple to hear if these allegations were known to anyone. They would probably also have pursued the question of whether Judy had any reason to fabricate these allegations.

They would have done so for two reasons. First, they want to sell newspapers and they know the story would satisfy the prurient interests of their readers. Second, they understand that in a democracy politicians are accountable to the voters and that politicians can only be held accountable if voters have the relevant facts – whatever these facts might be. One relevant fact (if eventually shown to be true) that would automatically end a politician’s career is that the politician is a wife-beater.

In South Africa: nothing.

Some patriarchs say that the allegations of spousal abuse made against Tokyo Sexwale must be false because women often lie about such things to get a bigger divorce settlement. Oh dear, the abolished cautionary rule rearing its ugly head again in the form of “common sense” bigotry. Members of the media – too busy chasing like a mad pack of dogs after the hot and sexy story of the month (which happens to be rape and not spousal abuse) – are too lazy or care too little about violence against women to pursue the matter. Or perhaps the story is too complex for the media to handle. As there are no easy answers and as the facts are not clear, better not touch these allegations – let’s rush to Bredasdorp instead and see if we can dig up some dirt.

Others say the cabinet minister is innocent until proven guilty and so we should not ask questions about whether the allegations are true because this would prejudice the minister. This is nonsense. Our Constitution guarantees every accused the right to a fair trial, which includes the right of an accused to be considered innocent by the court of law until such time as the state may have proven its case against him or her. It does not prevent us from asking whether serious allegations of criminal conduct are true or not. Where accusation are made against a cabinet minister and where such accusations go to the heart of his suitability to be a cabinet minister, it is clearly in the public interest to publish it – unless there is clear evidence that the allegations were fabricated. We cannot assume Sexwale is a wife beater. But neither can we assume that he is not.

Only a court can determine criminal guilt. But facts do not stop being facts merely because they have not yet been confirmed by a court. One fact in the Tokyo Sexwale case that we know is true is that Judy Sexwale has accused her husband of physically abusing her. This fact will not disappear because we stick our heads in the sand and try to ignore it because of some misguided attempt to protect “one of our own”.

The suspects in the Anene Booysen rape and murder case are also innocent until proven guilty. A court has not made any finding as to their guilt. Should that stop the media from reporting on the known facts around the case in fear of prejudicing the accused and creating the impression that they are guilty of rape and murder? Or is there one set of rules for rural poor men accused of violence against women and another for a rich, urbane, cabinet minister? After all, Sexwale is “one of us”, so it would make us feel more worthy and pious to believe him than to keep an open mind about whether he abused his wife or not.

In a democracy, it is the job of the media to find out what the relevant facts are and to tell us about these facts. Personally, I do not think it is relevant that Minister Sexwale is getting divorced: it is none of my business whether he is married or divorce and I could not care less about the personal squabbles of the couple. But if I know one thing it is this: in a constitutional democracy it is profoundly relevant that his wife accused him of physically abusing her as this accusation goes to the heart of his suitability to remain in politics.

Only the most brazenly sexist among us would argue that whether a cabinet minister is a wife beater or not is not a relevant issue that citizens have a right to be informed about. Of course, in this case the facts might eventually show that the claims against the minister are entirely baseless. But we do not know that yet. And without exposure in the media we are never likely to know, either whether he is a wife beater or an innocent man being framed. And assuming that the accusations made by Judy Sexwale are false or that they are none of our business because they have not been reported to the police previously, demonstrate exactly the kind of patriarchal attitudes which I claimed in an earlier post lies at the heart of the rape culture in South Africa.

Which brings me back to the question many asked after my last piece: if we are not going to take part in cheap publicity stunts and self-satisfied expressions of outrage about rape, what is to be done about addressing sexual violence in society?

First, we must take steps that would reduce the prevalence of sexual violence in our society. A comprehensive educational drive to help citizens analyse, critique and ultimately reject the rape culture we live in, would be a starting point.

Surely, as we speak the Minister of Basic Education must be formulating urgent plans on how to integrate questions of destructive masculinity, sex and gender inequality and problems with patriarchy into the school curriculum to counter the deeply held belief among many in our society that men own women and their bodies and can possess and dominate them (both emotionally and physically) as they please?

Every institute of higher learning must be rushing to introduce a compulsory first year course for all students, teaching them about how sex, gender, race, sexual orientation, class and disability are deployed by dominant groups to assert their power over (and to continue their subjugation of) non-dominant groups. Education can at least begin to break down stereotypes and unexamined attitudes of superiority that reinforce the subordination of disempowered groups and perpetuate the false sense of superiority of historically dominant groups. Here at UCT, we can institute an investigation on why the Humanities Faculty cancelled the only course in diversity literacy at the end of last year and we can ask what this says about our University’s commitment to breaking down racist, sexist and homophobic attitudes of students.

In churches, mosques and synagogues religious leaders should be rushing to tell their congregants that they will stop their sentimental infantilising of women, which sends the signal that women remain the property of men, albeit property that must be looked after relatively carefully – especially if women “behave” themselves and do not act as if they are free to go where they please and do what they please. Most religious leaders will have to repent and will have to admit that they have contributed (and continue to contribute) to the oppression of women and the reification of masculinity and male power.

And of course, every political leader should go beyond vague and self-serving statements about how they condemn brutal rape, and start talking about the causes of rape and propose solutions to address these causes. They must talk about the destructive manifestations of masculinity that turn many men into oppressors and rapists; they must talk about the absence of male role models who can teach male children that they should reject the forms of destructive masculinity that is supposed to imbue often broken and easily humiliated men with a false sense of pride and self-worth; they must talk about the patriarchal attitudes that live in the hearts of most South African men – whether they are traditional leaders, politicians, sportsmen or the ordinary soccer or rugby loving man who make rape jokes with his buddies or assert his dominance over them by telling them he will make them his “bitch”.

Second, we must take steps to apprehend the perpetrators of violence against women and get them convicted of their crimes. This would require a complete transformation of the criminal justice system. Let’s start with South African Police Service (SAPS), whose members and leadership will have to be trained about what the legal definition of rape is, how to treat a rape survivor with respect, how to take a decent statement from the survivor, how to gather the other evidence in the least invasive way, and how to prepare a case docket that could lead to conviction of the perpetrator. They will have to be taught not to dismiss accusations of rape out of hand because of their own prejudices or hatred of women. They will have to be taught how to deal with forensic evidence and how to follow up clues and how to apprehend suspects living in the community and known to that community. It would also help if they all suddenly stopped being homophobic and ended what often looks like the deliberate botching of rape case investigations against lesbians.

We will have to retrain our prosecutors and the NPA leadership and teach them that the evidentiary rule that assumes the testimony of rape complainants must be treated with caution has long since been discarded; that they should not drop cases merely because the complainant was not brutally attacked or because they suspect (because of their own prejudices) that the complainant just voluntarily exposed herself to the unspeakable ordeal of laying a rape charge because “women are prone to do that kind of thing”; that they must conduct their cases in a manner that would protect the complainants against cross examination about the complainants’ previous sexual history and must learn to protect complainants from the vicious character attacks by counsel defending the accused.

We need to re-educate judges about rape and about the minimum sentences that they are mandated to impose. We need to educate them about the fact that they have to impose minimum sentences for convicted rapist, unless serious and compelling reasons exist not to. They must be taught that it is not – as Chief Justice Mogoeng argued in a High Court judgment – a serious and compelling reason to reduce the minimum sentence of a child rapist because the rape was allegedly committed in a “tender” manner. (Nor is it a serious and compelling reason to reduce the sentence because the rapist was young/ the rapist was older; the rapist did not have a job/ or had a job; the rapist knew the victim/ the rapist did not know the victim; the rapist was educated/ the rapist was note educated – all factors used in the past by our courts to justify not imposing a minimum sentence.)

Third we need to protect and nurture the survivors of rape. The state needs to establish rape crisis centres across the country or adequately fund the existing rape crisis centres. While we wait for the state to do so (and we will probably wait very long because the Minister of Women and Children is herself not particularly sympathetic to those who claim they are abused by men), we can all donate money to rape crisis or volunteer our time to assist rape crisis (see http://rapecrisis.org.za/support-us/donate/).

How many of these proposals will find favour and will actually be implemented by those in charge? As things stand now, very few to none. This is because the cheap outrage about rape cost nothing while the kind of actions I propose will require real political will (and a real understanding of the problem) to implement. We will only manage to force the government and others to do these things if we organise in ways that go beyond cheap publicity stunts and if we can manage to put real political pressure on the government, on schools, on religious groups on universities on our colleagues and our family.

2015 Constitutionally Speaking | website created by Idea in a Forest