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Op-ed: Appeal shows misuse of courts to enforce culture of silence

- Sheena Swemmer

Head of the Gender Justice programme at CALS explains how legislation and courts intended to protect victims and survivors are used to silence them

[This op-ed was published by News24 ‘Appeal shows misuse of courts to enforce silence culture around rape’]

On 22 October 2021 the Centre for Applied Legal Studies (CALS) hopes to intervene as a friend of the court in an appeal case brought by Women's Legal Centre on behalf of a rape survivor. The appeal deals with a judgment from the Cape Town Magistrate's Court which prohibits the survivor from 'disclosing to anyone in any manner that the Respondent had allegedly raped' her. 

The appeal emerges from an incident in 2019 where the survivor disclosed her rape in a 'safe space group' which was then subsequently leaked by a third party to social media. The survivor maintained throughout the Magistrate's Court hearing that she did not reveal the identity of her rapist on these online platforms and instead this was the action of a third party, without her consent. 

The misuse of laws to silence survivors of gender-based violence has become more prevalent since the emergence of the global #MeToo movement. South Africa saw its very own feminist hashtag movements in 2018/2019 with the hashtags #TotalShutdown and the #AmINext?. These feminist movements pressurised the South African government to publish the National Gender-Based Violence and Femicide Strategic Plan, which saw its inception in 2020. 

Spike in misuse of laws 

Similarly to many other countries such as the United States, France, Russia and the Netherlands, South Africa has seen a spike in the misuse of laws around defamation claims by perpetrators of gender-based violence. For example, Sandra Muller, one of the leaders of the French #MeToo (#balancetonporc) movement, recently successfully appealed a defamation case launched against her by a man that had sexually harassed her. The appeal court overturned the previous court's decision and stated that Muller acted in 'good faith' and in the 'public interest' by disclosing the perpetrator's identity. 

Recently, in Booysen v Major's case, the Cape Town High Court dismissed an urgent application by a man who sought an interdict against a survivor for disclosing on social media that he raped her. In Justice Baartman's judgment, she acknowledges that 'it would be preposterous to give the alleged abuser editorial rights over the victim's narrative'.

The appeal that will be heard in the Cape Town High Court only differs in the choice of legal procedure (a protection order rather than a defamation claim), yet the modus operandi of attempting to silence a victim of gender-based violence arguably remains the same. 

The question that emerges from the above case and the various hashtag movements around gender-based violence and disclosure in South Africa, is why victims and survivors of gender-based violence choose various 'unofficial' platforms as spaces to disclose their experiences and the perpetrator's name rather than approaching the police. 

Unfortunately, the South African criminal justice system largely does not serve the interests of survivors of gender-based violence. This can be seen from a South African Medical Research Council study in 2017, which found that of the rape cases reported to police each year, only 8,6% result in a successful prosecution. 

Distrust in criminal justice system

Due to factors including the low conviction rate, avoiding the trauma associated with reporting to the police, and the perceived stigma associated with being a victim of gender-based violence, many individuals choose not to report cases. The figures around opting not to report gender-based violence are staggering. A 2010 study by GenderLinks found that only 1 in 25 women who were raped in Gauteng reported the offence to the police. 

With the unlikeliness that a case of gender-based violence will result in a successful conviction it is unsurprising that many individuals simply do not trust the criminal justice system and choose not to take a 'formal' route to finding justice. Instead, many women decide to disclose their experiences in places such as 'whisper networks', which offer safe spaces for disclosure (online and offline). 

The movement of some to publicly disclose their experience and the identity of the perpetrator can be partly seen as an act of seeking justice, based on the fact that we have a failing criminal justice system. It also highlights the prevalence of gender-based violence in our society, which occurs largely unabated and with impunity. 

Courts dealing with matters related to disclosure around this form of violence should consider these cases within the context around gender-based violence and the inadequacies of the criminal justice system in South Africa, when coming to a decision that may punish the individual survivor for disclosing. If our formal systems do not assist victims of gender-based violence, then prohibiting the use of informal systems of disclosure becomes in and of itself, an act of silencing victims and making justice even more remote. 

Sheena Swemmer is head of Gender Justice at the Centre for Applied Legal Studies at Wits University