Address by Public Protector Adv. Busisiwe Mkhwebane during a Webinar commemorating the 16 Days of Activism for No Violence against Women and Children on Friday, 04 December 2020

Programme Facilitator, Ms. Yalekile Lusibane;

Deputy Public Protector, Adv. Kholeka Gcaleka;

Deputy Minister of Social Development, Ms Hendrietta Bogopane-Zulu;

Acting Divisional Commissioner: Detective Services of the South African Police Service, Major General Bafana Linda;

Chairperson of Development of Cultural and Religious Rights, Ms Thoko Mkhwanazi-Xaluva;

Spokesperson for the Commission for Gender Equality Mr. Javu Baloyi;

Gender activist and founder of Wise4Afrika organization, Adv. Brenda Madumise- Pajibo;

Gender based violence survivor, author and motivational speaker, Pastor Mirriam Mashego;

Distinguished guests;

Ladies and gentlemen;

 

Good morning;

Let me begin by extending to you all a word of gratitude for having made time to join us today as we tackle the pertinent issue of Gender-Based Violence (GBV) and femicide.

Your participation goes to show how serious you are about eradicating this scourge. Let it serve as an inspiration to others, for this is a massive battle which we can only win if we work together.

Democratic South Africa endeavours to do away with the adversarial and retributive approach to criminal justice reminiscent of apartheid in favour of a more restorative way of doing things. 

At the core of this approach of this is "the recognition of crime as more than an offence against the state, but also as an injury or wrong done to another person". 

The issue pertaining to the jurisdiction of my office where GBV and femicide are concerned has been dealt with thoroughly. 

At the risk of belabouring the point, let me stress the fact that the Public Protector Act 23 of 1994 in section 6(4) empowers my office to investigate maladministration in connection with the affairs of government at any level; abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function. 

Where the act refers to "maladministration in connection with the affairs of government at any level", the Criminal Justice System is covered only to the extent that we focus on the administration of justice side of things so as to not interfere with the judicial and prosecutorial powers of the courts and the prosecuting authority, among others, which must be exercised independently.

For instance, the Constitution bars my office from investigating court decisions. However, we are able to entertain allegations of maladministration within the judiciary and the prosecuting authority. 

As seen in the case referred to by the Facilitator, we do investigate undue delays on the part of the police to deal with matters expeditiously in instances where any dragging of feet may subject the victim to another spell of victimisation.

If you go through the report of the matter in question, you will realise that appropriate remedial action was taken against the police, the prosecuting authority and the Department of Justice and Constitutional Development.

One of the authorities relied upon in that investigation was the Service Charter for Victims of Crime. Two weeks ago, on 21 November 2020, the charter marked 13 years since it was officially launched.  

The legal framework concerning how the state – through its various institutions within the criminal justice value chain – ought to interact with victims of crime is encapsulated in the charter. In terms of the charter, victims enjoy the following rights:

• The right to be treated with fairness and with respect for dignity and privacy;
• The right to offer information;
• The right to protection;
• The right to assistance;
• The right to compensation; and 
• The right to compensation.

The charter seeks to eliminate secondary victimisation in the criminal justice process; ensure that victims remain central to the criminal justice process; clarify the service standards that can be expected by and are to be accorded to victims whenever they come into contact with the criminal justice system; and make provision for victims’ recourse when standards are not met.

To ease the implementation of the charter, government developed a Minimum Service Standard for Victims of Crime. It deals with the responsibilities of each government department to victims. 

But, because human beings are infallible, omissions are bound to happen and the charter anticipates this. Perhaps to buttress the point I made earlier about my office's jurisdiction, the charter recognises the role of some of the Public Protector and the Commission on Gender Equality, to mention but a few.

It recognises victims’ right to complain to government departments or service providers in respect of dissatisfactions arising from services received or in instances where their rights as victims are not observed.

It then provides that, in the event the victim is not satisfied with the handling of their complaint by the departments or the service provider, they can escalate to the Public Protector or the CGE.

We do get these kind of cases even though they are in the minority. For instance, we are currently investigating allegations that  the late Ms. Altecia Kortjie, who, along with her seven-year-old daughter Raynecia was found murdered in Belhar, Cape Town on 12 June 2020.

This was after she was allegedly turned away by officials at the Bellville Magistrates Court when she approached the court for a protection order against her alleged killer and estranged partner. 

The investigation was triggered by a complaint lodged on18 June 2020 by Deputy Minister John Jeffery. The investigation is at an advanced stage but there is one which we have just concluded. 

On 15 November 2018, my office was approached by Ms. Thoko Mkhwanazi-Xaluva on behalf of Ms. Cheryl Zondi, alleging maladministration on the part of the Office for Witness Protection of the National Prosecuting Authority, when that office failed to adequately inform Ms Zondi of her rights to protection in terms of section 10 (1) (g) of the Witness Protection Act 112 of 1998.

The complainant alleged that on 23 October 2018, she was alerted about a potential threat to her life by Brigadier Govender of the Directorate for Priority Crime Investigation by reason of her being a witness or a potential witness in a criminal matter relating to the prosecution of Pastor Timothy Omotoso on 48 charges of human trafficking, rape and abuse of young women.  Upon receipt of this information, she decided to seek witness protection and reported her concerns, beliefs and fears to the Office for Witness Protection.

On 2 November 2018, the Complainant met with Ms Rochelle Brennan, Head of Witness Protection Unit: Gauteng, who explained to her how the Witness Protection Programme works, indicating to her amongst others that she will need to be relocated and change her name so that her identity can be protected. From this the Complainant understood that her educational aspirations will be compromised by the move, and most importantly she will lose the support of her friends and family.

Notwithstanding the risk to her safety, the Complainant sent an e-mail to Ms Brennan on 12 November 2018 declining to be placed into the Witness Protection Programme based on a number of reasons.  In essence she was of the view that the system was extremely rigid, too disruptive and too unsympathetic to victims of crime.

Following a thorough analysis of the complaint, I decided to focus the investigation on whether the conduct of members of the Office for Witness Protection, by failing to initially inform the Complainant of and to explore the availability of alternative means of protection in terms of section 10(1) (g) of the Witness Protection Act, other than entry to the Witness Protection Programme, amounted to maladministration.

I also looked into whether the complainant was prejudiced as result of or in the course of her interaction with members of the Office for Witness Protection. 

I found that the allegation that members of the Office for Witness Protection failed to initially inform the Complainant of and to consider other means of witness protection as envisaged in section 10(1) (g) of the Witness Protection Act, is substantiated.

The State and the Institutions responsible for the criminal Justice System have through various instruments, charters and standards which recognise the rights of witnesses and victims of crime to receive information and to be informed of all relevant services available to victims and witnesses by service providers.  

It also includes the right to be protected from intimidation, harassment, fear, tampering, bribery, corruption and abuse to ensure a victim’s safety as a witness and the availability of her testimony.

The risks and threats to the safety of the complainant were reported to members of the Office for Witness Protection. The complainant had a right to expect action from the State to protect her against such threats and risks through the services and means at its disposal in a structured and constructive manner.  

Providing the complainant with an option to stay where she was, when she clearly did not feel safe, did not constitute alternative means of protection as envisaged in the Act, and did not meet the standards of the service that the State and the Office for Witness Protection committed to and are expected of a public functionary in terms of section 195 of the Constitution. 

The Act, recognises in section 10 that there might be circumstances in which witnesses or related persons might not be able to adjust to the witness protection programme as invoked through the provisions of the Act, having regard to personal characteristics, circumstances and family or other relationships. In such circumstances the Act implores the Director to consider and explore the availability of other means of protection, without invoking the provisions of the Act (entry into the Witness Protection Programme). 

To suggest that the Director is only under a duty to consider and explore alternative means of protection if and when a witness or victim of a crime has agreed to be subjected to the formal witness programme application process, and to abandon such a witness or victim if he/ she indicates that they will not be able to adjust to the programme, is in disregard of the very rights that the Government and the Institutions concerned   profess to recognise and commit to in the current victims and witness support framework and instruments.

In the circumstances it is clear that the State, and its functionaries, in particular the members of the Office for Witness Protection, did not live up to the standards of information and protection to which they have committed themselves in support of witnesses and victims of crime, nor have they lived up to the values and principles of fair and responsive public administration as envisaged in section 195 of the Constitution.

The  conduct of the members of the Office for Witness Protection in this regard amounts to maladministration as envisaged in section 6(4)(a)(i) of the Public Protector Act and improper conduct as envisaged in section 182(1) of the Constitution.

I also found that the allegation that the complainant experienced the interaction with the members of the Office for Witness Protection as traumatic and prejudicial, is substantiated.

From the evidence at my disposal, the complainant was already suffering severe hardship as a result of being both a victim and a witness in a serious criminal matter that involved abuse and violation of the dignity of a number of young girls, including herself.  

She had to discontinue the tertiary education she intended to pursue and due to the personal nature of the crime that was committed against her, she was very reliant on her family for emotional and psychological support, to manage and deal with the trauma she was enduring.  

To remove her family would be to remove the emotional and psychological stability that she experienced, and relied on from her family.

To be made aware of the fact that her life was at risk, and then to be left without effective support from the very Institutions that were expected to be accommodative of and sensitive to her needs and circumstances, added to the trauma that she was already experiencing.

The conduct of the members of the Office for Witness Protection resulted in prejudice as envisaged in Section 182(1) of the Constitution and improper prejudice as envisaged in Section 6 (4) (v) of the Public Protector Act.

The appropriate remedial action I am taking in terms of Section 182(1) (c) of the Constitution with the view of placing the Complainant as close as possible to where she would have been had the improper conduct and maladministration not occurred is as follows.

The Acting Director of the Office for Witness Protection to:

1. Issue a written apology within thirty (30) working days from the date of the report to the Complainant apologising for, the failure by the Office for Witness Protection to offer her alternative protection in terms of section 10(1)(g) of the Witness Protection Act, which resulted in her suffering prejudice and not having access to protection when her life was in danger;
2. In line with the rights and standards recognised in witness and victim support framework as discussed in this report, and in consultation with the National director of Public Prosecutions must establish guidelines through a policy document or operational procedures to facilitate the screening and assessment of each matter where it is reported in terms of section 7(1) of the Act that a witness has reason to believe that his or her safety or the safety of any related person is or may be threatened by any person or group or class of persons whether known to him or her or not, by reason of his or her being a witness, with the view to:

1. promote, give effect to and within their scope of responsibility, enforce the rights of victims and witness to support and protection as contemplated in, inter alia, the Service Charter for Victims and Minimum Standards on Services;
2. within its scope of responsibility, render relevant services to protection services to witnesses  in an integrated and coordinated manner;
3. provide clear, timely and consistent information about relevant support and protection services and assistance available to witnesses; and
4. Be sensitive to, to curb or mitigate victimhood and the challenges surrounding gender based violence, femicide and abuse of women and children in South Africa.

3. The required policy or guidelines must furthermore give effect to the application of section 10(1) (g) of the Witness Protection Act.  This would then oblige the Office for Witness Protection to transparently inform witnesses of this.
4. In the interim, pending the finalisation and implementation of the afore-mentioned policy or guideline, the Acting director of the Office for Witness Protection must take steps to ensure that in the initial preliminary interview witnesses are transparently informed of their rights and all possible alternatives in terms of Section 10(1) (g) of the Witness Protection Act being available, and also of any other means of protecting the witness without invoking the provisions of the Act.  Directly linked to this should also be the inherent consideration of section 10(1) (e) of the Witness Protection Act “where the probability that the witness to adjust to protection, having regard to the personal characteristics, circumstances, family or other relationships of the witness are considered.”
5. If additional funding is required by the Office for Witness Protection or the National Prosecution Authority to properly fund its obligations in terms of section 10(g) of the Act, it should consider bids to National Treasury to ensure that this is prioritised in its budget.
6. I further deem it necessary and in the Public interest that this report on the findings of this particular investigation be submitted to and tabled in the National Assembly in terms of section 8(2)(b) of the Public Protector Act.
7. A copy of the Report is be submitted to the Minister of Social Development for noting in so far as it might relate the statutory interventions and intersectoral programmes or victim support service programmes that the Department and relevant Institutions have embarked on with the publication of the draft Victim Support Services Bill 2019, to promote integrated service delivery for a victim and witness empowerment programme.

It is my hope that this report will be received in the spirit of our collective responsibility to assist victims of crime in the manner envisaged in the charter and, to the extent that we criticise the conduct of members of the Office for Witness Protection, that criticism should be taken constructively.

We must at all material times focus on the plight of the complainants, in this case, victims of crime, rather than anything else. We run the risk of complicity in subjecting victims to secondary victimisation if we, as institutions that should remedy any shortcomings and provide victims with appropriate redress, turn our attention and resources to issues other than the plight of those victims.  

I look forward to the engagement with fellow panellists. It is my hope that we will emerge out of this conversation better equipped to go play a meaningful and impactful role in pushing back against the tide of GBV and femicide.

Thank you.

Adv. Busisiwe Mkhwebane

Public Protector South Africa