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Judgment upholds rape survivors' rights to freedom of expression

- Lee-Anne Bruce

Judges Henney and Thulare of the Western Cape High Court have handed down judgment overturning an order silencing a rape survivor

The Centre for Applied Legal Studies welcomes yesterday’s judgment by the Western Cape High Court, upholding the appeal against an order that prohibited a survivor from disclosing her former partner had raped her. CALS acted as a friend of the court in the matter and we are heartened by the judgment, its stance on gender-based violence and its implications for all victims and survivors.

On 24 March 2022, the Western Cape High Court handed down judgment in an appeal against a ruling by the Cape Town District Magistrates Court. The Magistrates Court had granted a final protection order under the Protection from Harassment Act against a rape survivor in favour of her abusive former partner. It found that she was responsible for him facing harassment over social media – though she had never named him as her rapist publicly. The Court ordered that she was prohibited from disclosing “to anyone in any manner” that her former partner had raped her.

The survivor, represented by the Women’s Legal Centre, launched an appeal against the order, arguing that it was an unreasonable infringement on her rights and an abuse of a law that is meant to protect survivors of gender-based violence. The Centre for Applied Legal Studies (CALS) based at Wits University was granted leave to intervene in the matter as a friend of the court to provide context around the Protection of Harassment Act and to argue that it is the state’s duty to encourage victims and survivors to come forward instead of silencing them.  

Yesterday’s judgment upheld the appeal, set aside the protection order and further awarded costs to the appellant. Judges Henney and Thulare go to some trouble to reverse the magistrate’s findings that a survivor of gender-based violence must be careful who they trust with their “secrets” and that it is “strange” for a survivor not to lay a charge with police. Their judgment emphasises instead that gender-based violence is pervasive in our country, that many survivors have a rational reason for failing to report the crimes committed against them and that this cannot be used to draw a negative inference about the truth of their claims.

The judgment further acknowledges the need for survivors to speak out and express themselves about what has happened to them outside of the criminal justice system. In fact, they assert that the magistrate’s comments “perpetuated the notion that victims of gender-based violence should not speak out, should remain silent about their experiences and should be careful who they speak to”. The Court finds instead that the appellant was “trying to be heard, to find healing and protect others” and that she was well within her rights to do so.  

“This judgment affirms that the right to freedom of expression includes the right of survivors to speak about their experiences of gender-based violence,” says Sheena Swemmer, head of the Gender Justice programme at CALS. “We were gratified to note that the Court found our submissions ‘very useful’ and we are pleased that we could assist the Court in any way in this important case.”

CALS was represented by external counsel Mx Letlhogonolo Mokgoroane and we send our grateful thanks to them.

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