Address by the Public Protector, Adv. Busisiwe Mkhwebane, during the Gender-Based Violence and Mental Health Awareness Day at Tshwane North TVET College: Temba Campus in Hammanskraal north of Pretoria on Thursday, August 26, 2021.
Programme Director, Ms. Nomzamo Matlombe;
Campus Manager, Mr. S. Modise;
Head of Student Support Services, Mr T Ngubane;
Special Director of Public Prosecutions, Adv. Bonnie Currie-Gamwo;
Member of the Student Representative Council, Ms. F. Modlane;
Ladies and gentlemen
Let me thank the Campus Management for extending the invite to my office to share with the campus community what is it that the Public Protector can do to assist victims of Gender-Based Violence (GBV), who have been failed by the system or actors within the system.
This is indeed a pertinent issue which should be dominating the public discourse all year round until the tide turns and not just during Women’s Month or the 16 Days of Activism Campaign for No Violence against Women and Children.
I wish to commence my address three real life stories of as many women and victims of GBV whose cases we dealt with in recent years as the Public Protector in South Africa.
The first case relates to the plight of a gang-rape victim, who had to endure 48 postponements of proceedings in her attackers’ trial. She lived 25km away from the court premises. On the occasion of each postponement, the victim’s unemployed mother would have to find taxi fare to fund the return trip for the both of them. This was an own initiative investigation following a newspaper report.
The second case relates to the rigidity, disruptiveness of and lack of sympathy by the Witness Protection Programme for another rape victim. The victim is a young woman, who is currently a key witness in a criminal case relating to the prosecution of a 62-year-old pastor, who is facing 48 charges of human trafficking, rape and abuse of young girls.
The young woman was alerted to a threat on her life by the police. The threat arose out of her being a witness in the case. For her, having to change her identity and be relocated to a place far away from her family was going to be too disruptive to her life. Her studies would be affected and she would lose the support of friends and family.
The last case is that of 27-year-old woman, who was killed along with her 7-year-old daughter, allegedly by her partner. This was only days after she had visited a Magistrates Court in Cape Town to apply for a protection order against the alleged assailant.
She didn’t obtain the order. It was alleged in the media that court officials turned her away. This prompted the Deputy Minister of Justice to ask that we investigate the claims.
In the gang-rape case, our investigation found that the Department of Justice, the police and the Prosecution Authority failed to adhere to the set standards and prescriptions of the Victims Charter. The investigation also revealed that the young woman suffered prejudice when her constitutional rights to dignity, equality before the law and the right as a child to be afforded action in her best interests were not respected.
In the end, the Justice Director-General apologised in writing to the young woman in line with the Public Protector’s remedial action. The young woman was also compensated for her out-of-pocket expenses. The two rapists were convicted and imprisoned.
In the case of the witness, we found that the Office of Witness Protection did not live up to the standards of information and protection to which they committed themselves in support of witnesses and victims of crime nor did they live up to the values and principles of fair and responsive public administration as envisaged in the Constitution.
We also found that the young woman experienced the interaction with members of the Office of Witness Protection as traumatic and prejudicial. She was already suffering severe hardship as a result of being both a victim and a witness in serious criminal matter that involved abuse and violation of the dignity of a number of young girls, herself included.
To remedy this maladministration, we directed that the Prosecution Authority under whom the Witness Protection Programme falls, to develop a policy addressing the problematic areas in respect of witness protection as experienced by the young woman and to apologise to her in writing.
Lastly, in the case of the slain young mother, our investigation revealed that, in fact, officials helped her to obtain the protection order but she did not complete the application process because she found it a bit cumbersome.
These cases paint a picture of the extent to which the Public Protector can be of assistance to victims of crime and, in particular, GBV when they are of the view that the criminal justice system has forsaken them. To put it all in context, allow me to delve into the mandate of the office.
The Public Protector is established in terms of Section 181 of the Constitution to strengthen constitutional democracy. We share this responsibility with other institutions such as the South African Human Rights Commission (SAHRC), Auditor-General and the Electoral Commission, which are also established under the same section.
We are independent and subject only to the Constitution and the law. We are also impartial and must exercise its powers and perform its functions without fear, favour or prejudice.
The Constitution commands all other organs of state to assist and protect us so as to ensure our independence, impartiality, dignity and effectiveness. In addition, the Constitution prohibits interference by any person or organ of state with our functioning.
Section 182 of the Constitution empowers us to investigate, report on and appropriately remedy any alleged or suspected improper or prejudicial conduct in state affairs or the public administration, in any sphere of government.
Just as court orders bind all persons to whom and organs of state to which they apply, our remedial action is binding unless set aside by a court of law. This is according to the Constitutional Court judgement in EFF v Speaker of the National Assembly and others (EFF v Speaker).
We do not possess the power to investigate court decisions. Neither do we have the power to investigate private companies or individuals. However, we must be accessible to all persons and communities.
Any investigation report of ours must be open to the public unless special circumstances requiring that such a report be kept confidential. Such grounds could be considerations of national security, among other things.
We have additional powers prescribed by national legislation such as the Public Protector Act. In terms of that piece of legislation, we are empowered to investigate maladministration in connection with the affairs of government at any level, abuse or unjustifiable exercise of power or unfair, capricious or discourteous behaviour or other improper conduct or undue delay by a person performing a public function.
We are also competent to investigate improper or dishonest acts or omissions or offences referred to in the Prevention and Combatting of Corrupt Activities Act with respect to public money, improper or unlawful enrichment, or receipt of any improper advantage or promise of such enrichment or advantage by a person as a result of an act of omission in the public administration or in connection with the affairs of government at any level or by a person performing a public function.
We are further empowered by this legislation to look into acts or omissions by people in the employ of government at any level or those performing a public function which results in unlawful or improper prejudice to any other person.
In addition, we have powers under, among other pieces of legislation, the Executive Members’ Ethics Act and the Protected Disclosures Act.
We have a standard approach to investigations, in terms of which we set out to establish what happened, what should have happened, whether there is a discrepancy between what happened and what should have happened, and if that deviation amounts to maladministration or other improper conduct?
In the event of maladministration or improper conduct, we establish what it would take to appropriately remedy the wrong occasioned by the said maladministration or improper conduct.
The question regarding what happened is resolved through a factual enquiry relying on the evidence provided by the parties and independently sourced during an investigation.
The one regarding what should have happened focuses on the applicable legal prescripts that regulate the standard that ought to have been met by the relevant organs of state to prevent improper conduct and/or maladministration as well as prejudice.
The enquiry regarding the appropriate remedy or appropriate remedial action seeks to explore options for redressing the consequences of maladministration where possible and appropriate.
You have asked that I sensitise students here on how my office can assist survivors of GBV and, in particular rape, who cannot get justice due to dockets that disappear in the hands of actors within the criminal justice system. The South Africa Police Service define a docket an official document in which a record of a reported crime and the investigation conducted into such a crime is kept.
Dockets contain documentary evidence including witnesses and complainants’ sworn statements, identikits, expert testimonies, warrants of arrest, forensic laboratory and pathology reports as well as crime scenes exhibits such as sketches, photographs and fingerprint records.
Also contained in dockets are copies of communications and correspondence made during the investigation such as notes taken by the detectives and internal reports, negative fingerprint records, newspaper clippings and the police’s investigation diary.
From the above, the centrality of a docket to a successful conviction of perpetrators of crime couldn’t be more clearer. Accordingly, the disappearance of dockets deals a blow to cases. Above all, it deals a blow to any hope for justice on the part of victims of crime and promotes impunity.
In her Master’s Degree dissertation, Analysis on the Administration and Governance
of the South African Case Docket, University of Cape Town student Kameshwhri Moonsamy listed the negligent handling of such documents, lost or stolen dockets and the practice of bartering dockets in exchange for gratuities as the factors that result in the disappearance of dockets.
The issue of lost dockets has dogged the criminal justice system for years. According to the Institute for Security Studies, in 2008/09, 688 dockets went missing.
Responding to a parliamentary question in 2018, the Minister of Police revealed that 658 police dockets disappeared in five year period leading up to the point of that shocking revelation.
In January this year, a 50-year-old Senior Public Prosecutor in the Eastern Cape was nabbed in connection with the disappearance of dockets. This follows recurrent reports of missing dockets in the East London Magistrates Court in 2016.
According to the police, in one case a suspect was asked to pay R20 000 in exchange for the destruction of the docket, which eventually went missing. The docket was reconstructed. The suspect was persuaded to pay an additional R5000 in order for the reconstructed docket to be destroyed too.
Scholars such as Moonsamy argue that at the core of the problem is the manual case management system. According to her, until the police fully implement an automated case management system, “the labour intensive paper-based dockets will continue to bear negative ramifications”. She is right.
But the question is: What can the Public Protector do to assist survivors of GBV and, in particular rape, who cannot get justice due to dockets that disappear in the hands of actors within the criminal justice system?
As indicated earlier, the Public Protector does have the powers to investigation maladministration, corruption and improper conduct. The negligent handling and loss of a case docket can be classified as maladministration. However, the destruction of a docket in exchange to money or any other form of gratification is corruption.
Let me start with corruption. The Prevention and Combatting of Corrupt Activities Act 12 of 2004 (PRECCA), which is referenced in the section 6 of the Public Protector Act 23 of 1994 as granting the Public Protector an anti-corruption mandate, defines corruption as involving the influencing of a party by another to make a dishonest decision for gratification.
This definition is consistent with one by global anti-corruption organisation, Transparency International, according to which corruption is “the abuse of entrusted power for private gain”.
To put this into context, think of a decision maker who solicits a bribe from or is offered one by another person in exchange for a favourable decision. In this setting, both the decision maker and the person in whose favour the decision is made would be guilty of corruption.
Transparency International adds that corruption “erodes trust, weakens democracy, hampers economic development and further exacerbates inequality, poverty, social division and the environmental crisis.”
Transparency International further observes that the costs of corruption can be political, social, environmental and economic. In this regard, freedom, rule of law, citizens’ participation and trust in government, healthy environment and a sustainable future as well as opportunities to build and grow wealth are negatively impacted.
As the Public Protector, we can receive complaints of alleged corruption pertaining to the loss of dockets and investigate. Once we have gathered all of the evidence, we can bring such evidence to the notice of the Prosecuting Authority under section 6(4)(c)(i) of the Public Protector Act or notify the police in terms of section 6(4)(c)(ii) of the Act to consider a criminal investigation.
Regarding the maladministration aspect of our potential intervention, the focus would be on the criminal justice system itself. Our interest would be administrative action. We would concentrate on officials, whose acts and/or omissions would have given rise to a situation where victims suffer secondary victimisation.
Earlier I referred to something called the Victims Charter, which is also knowns as the Service Charter for Victims of Crime. In the main, the Charter seeks to eliminate secondary victiminsation in the criminal justice process and ensure that victims remain central to the criminal justice process.
It also seeks to clarify the service standards that can be expected by and are to be accorded to the victims whenever they come into contact with the criminal justice system. It further seeks to make provision for victims’ recourse when the standards are not met.
Accordingly, in investigating alleged negligent handling of a docket, the idea would be to eliminate future events that enables a fertile ground for discrimination and secondary victimisation. In other words, we are all about impacting the criminal justice value chain and ensuring redress for victims of system failure.
In this regard we aim to bring the victim of system failure as close as possible to where they would have been had it not been for maladministration while at the same time plugging the gaps in the system, which gaps would have given rise to the maladministration. We do so with a view to stemming a recurrence.
However, the Public Protector is the complaints body of last resort. We advise potential complaints to exhaust all available remedies before approaching us. If police officer fails you, report them to the Station Manager. If you do not get joy, there the Civilian Secretariat for Police Service. There is also the Independent Police Investigation Directorate.
Likewise if a prosecutor fails you, report them to their seniors in the public prosecution hierarchy. Only when you did not get joy from any of these forums can you escalate to the Public Protector. This is not to say we will turn you away if your matter is urgent. We will assess and use our discretion. However, it is important to exhaust all other avenues.
In our country, GBV has reached crisis proportions. The loss of case dockets in matters concerning GBV are a serious setback for the pushback against the scourge. Those found to be responsible through, either negligence or corruption, must face the fill might of the law and an example must be made of them to send a strong message to others to desist and refrain from such conduct. In such circumstances, victims will have confidence in the system and believe in justice.
My office is currently in the early stages of a systemic investigation on the unpleasant experiences of victims of Gender-Based Violence when they interact with officials at Magistrate’s Offices across the country and those of parents who interact with officials at such courts for purposes of Child Maintenance, and how we can curb the systemic deficiencies that give rise to such experiences.
We call on all those who have been affected by the alleged systemic maladministration in the various Magistrate's Offices in respect of these two issues to come forward with their experiences and make submissions.
Those who have a contribution to make in this regard must take the opportunity to help us ensure that the systemic failures that give rise to the maladministration as experienced by victims of GBV and parents out there can be addressed for good so as to prevent a recurrence.
Adv. Busisiwe Mkhwebane
Public Protector of South Africa