News agency, Cape Town, South Africa
Wednesday October 17th 2018

Courts ignore provisions for protection of child rape victims

A fifteen year old girl burst into tears at a city magistrate’s court earlier this month when she was forced to come face-to-face with her two alleged rapists in the courtroom. Even though she was encouraged not to look at the accused, but to address an interpreter, her trauma was so great that she could not even answer the first question before covering her face with her hands and starting to cry.

The case was postponed for six weeks after magistrate Robert Matshikwe found that the girl had only had three counselling sessions to prepare her for facing her alleged attackers – not to mention the hours of cross-examination she would have to endure. The prosecuting attorney further confirmed that even before the hearing, the girl did not seem prepared.

Unfortunately, this is not an isolated case of a child’s rights (as stated in Section 28 of the Constitution) not being protected, but is common practice in courts, and the matter is to be taken up at the Constitutional Court since a Pretoria High Court judgment handed down on 12 May this year. According to the judgment, “[t]he constitutional compatibility of applying this procedure to child witnesses and victims of violent crimes, especially sexual offenses, is questionable and may not be in the best interests of the child”.

In the matter between the State vs Aaron Makoena, and the State vs Albert Phaswane – both rape cases involving minors – High Court judge Bertelsmann found that constitutional issues arose. Both children, aged 11 and 13 respectively, were at times called to the witness stand before the accused, without explanation from the magistrates.

The judgment further states that in the case involving the 13-year-old girl, “[t]here was no suggestion that any consideration had been, or was given at any stage, to the question whether she should be allowed to testify through an intermediary. The impression is created that there was no intermediary available at the Pretoria North regional court, so that the court, the prosecution and the defence regarded it as useless to investigate whether a thirteen year old might be in need of such assistance”.

Advocacy manager at Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN) Sam Waterhouse said: “It’s very much the procedure is for 15-year-old girls to appear before the accused.” Waterhouse said despite the fact that the law allows for all victims, and especially child victims, to give evidence outside of the court room, officials often required “children from the age of 12” to be in the same court room as the accused. “It’s unacceptable,” she said.

National Childline Co-ordinator Joan van Niekerk agreed. She said older children were often more affected by sexual offences as they were more aware of the concept of rape. As a result, they often carried a “very intense shame”. “I have worked with these 15-year-olds, and I know their trauma. The ignorance of the court personnel…makes me furious,” said Waterhouse.

According to section 170A.1 of the Criminal Procedures Act, the court may appoint an intermediary through whom children under the age of eighteen may give evidence in circumstances where “undue mental stress or suffering” would be caused were they to appear in open court. Furthermore, section 170A.3 allows that a child give evidence outside of court, “so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness”. Section 158 of the same Act likewise grants that any person may apply to give witness in camera, should harm result from being in the presence of the accused.

However, in reality “[courts] just won’t let you”, said Waterhouse. According to counsellors like Waterhouse and van Niekerk, the problem lies chiefly in that that the Criminal Procedures Act grants courts discretion on how to use the provision, and as a result, the intermediary system is not prioritised by court officials. Children and counsellors thus have to rely on the prosecutor to request an intermediary, and for permission to be granted by the magistrate.

“People tend to try to do their best with children, but they often lack the training,” said van Niekerk. “The provision in law is weak, the training of the magistrates and prosecutors is patchy” and the reinforcement of the protective legislation in the workplace is consequently “rare”.

* Reporting by Anita Funke and Sandiso Phaliso. Published in the Mail&Guardian, 08 August 2008.

Tags: courts children

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