Sergeant at the Bar
The incidence of rape poses not only a threat to the women and children of this country, but to the very future of our constitutional state. For years we did not take seriously violence against women, particularly black women. Indeed we still have no reliable statistics of the incidence of the crime – the 20 to one ratio of reported to unreported rape is but a crude guesstimate. We have little by way of rigorous research even from our many institutes of criminology.
This apathy has now ended. Thanks to the courage of survivors such as Charlene Smith and Alison, whose eloquent and brave articles have given us fresh insight, the public, particularly women, are demanding action. Alas, men lag way behind in their commitment to ensuring that this violence ends. Some complain to the Advertising Standards Authority, which shows little wit and even less sensitivity. The judiciary appears reluctant to enforce new legislation dealing with sentences for rape.
In 1997, Parliament introduced a law providing for life imprisonment for those convicted of certain forms of rape, including the rape of a person under the age of 16 and rapes committed by more than one offender. The least the public could have expected from the judiciary was that there be an application of this law, save where, as provided, there were substantial and compelling circumstances which dictated that a lesser sentence be imposed.
A few months ago, Judge Dennis Davis imposed a sentence of 18 years on a child rapist. He was criticised heavily for remarks attributed to him by a reporter. The written judgment supported the judge’s protest that he had never claimed that rapists should be given a second chance. However, he refused to impose a life sentence on a child rapist and for this he was correctly rebuked. This justified public criticism should have acted as a signal of community opinion.
Judge Dirk Kotze did not heed the public’s concern. If the public considered that 18 years was insufficient, a sentence of 10 years (plus six running concurrently) for repeatedly raping two children was clearly going to invoke a sense of public shock. What made the position worse was that the offender had a previous conviction for rape and, further, the judge was reported as having referred to the two girls as “naughty” and the offender as merely “virile”.
With this background, the most recent judicial effort to pay scant attention to the 1997 legislation by Judge John Foxcroft is even more more inexcusable. Judge Foxcroft sentenced a 54-year-old man to seven years’ imprisonment for raping his own child. The only substantial and compelling circumstances were that the man was not a danger to society as his crime had been to rape in his own home. This 19th-century world view which permits a man to do anything he wishes in his own home is hopelessly inappropriate. Raping one’s own is not only an act of unspeakable brutality, but it represents so fundamental a breach of trust that it is doubtful that the victim can ever recover. For this reason alone the judgment is inexplicable.
What is to be done? Some wish to seek the impeachment of Judge Foxcroft. The understandable anger aside, this would be a monumental blunder. Judge Foxcroft has enjoyed a reputation as a sound and fair judge of many years’ experience. He did not act dishonestly or capriciously. He acted wrongly, very wrongly. To impeach a judge each time that he or she acts wrongly, even very wrongly, would undermine the precious concept of judicial independence. Today it may be this shocking judgment, tomorrow a judgment setting aside a law supported by the overwhelming majority of the country which bans a political party representing a minority.
Vigorous public protest, criticism from the profession, and the corrective mechanism of an appeal are far preferable to hasty, ill-conceived calls for impeachment. Perhaps some of the anger directed at Judge Foxcroft and the other judges can be explained in terms of the increasing public frustration at the inability of the authorities to curb the rape epidemic. The judiciary are the last in the chain of official response. The police and the prosecution are even more important agencies in the fight against rape. Both have proved grossly inefficient. Yet, we have seen little of the anger directed at Judge Foxcroft when the incompetent Sydney Mufamadi presided over the police, or when he was given yet another Cabinet post. No one called for the dismissal of Abdullah Omar with the same venom when it was clear to all that the Department of Justice had creaked to a halt.
None of this excuses the judges. The new Minister of Justice, Penuell Maduna, should ensure that judicial training takes place immediately. Judges are in clear need of an urgent course in gender sensitivity training. But police and prosecution must also perform if this country is to show serious purpose in fighting rape. These agencies and their ministers must be held accountable for their failures. Attacking the judges alone will not solve the problem.
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