Terrorised by perpetrators and victimised by the legal system

The young woman boarding the taxi had no idea that she was in for a nightmare ride. She thought she was on her way to work — an ordinary day in a Cape Town suburb. But the taxi driver and his assistant had other plans for her.

Over the course of 13 days in June 2007, the two men went on a spree of abduction, rape, sexual assault and robbery.
What made their case unique in a country where police report that at least 180 people are sexually assaulted each day — was their modus operandi.

They would pick up unsuspecting females in their minibus taxi and, once all the other passengers were dropped off, take out a gun, rob them and search for a secluded spot to rape them.

In choosing their victims, the men did not discriminate on grounds of colour, age or background: a mother, a wife, a pregnant drug addict, a hotel service consultant. For some, the taxi was their normal mode of transport. One woman took the taxi by chance that morning for the first time in her life on her way to her job as a receptionist.

On the last day of their reign of terror on June 25 the men abducted four women in less than 24 hours. Early that morning, two women boarded the taxi. Despite being driven to a nearby secluded spot, neither of them was raped, largely because of the extraordinary reaction of one of the women to the situation. She stayed calm and convinced the men to drive her to a nearby ATM so that she could withdraw R2 000 in cash for them.

Later that day, a third woman was abducted and robbed at gunpoint. The last of the victims that day was driven to a cemetery where one of the men raped her and the other attempted to rape her.

Eventually, through a series of events that included a victim recalling the taxi’s registration number, Tony Myburgh (25) and Peter Andrews (27) were arrested on June 28 2007.

There were 27 counts against them, including seven counts of rape, three counts of indecent assault, 15 counts of robbery with aggravating circumstances and two counts of attempted rape. Of course, the charge sheet could never reflect the experiences of their victims, the exact number of whom may never be known.

Both Myburgh and Andrews have been held in Pollsmoor Prison since their arrest five years ago. The case is still pending, largely because the two men have changed counsel four times in repeated attempts to strike a plea bargain. They are now on their fifth set of defence attorneys. High caseloads for defence attorneys and prosecutors mean that trials resume weeks later.

The rape case will commence once again in mid-May — a full two months since it was last in court.

Following the recent gang rape of a 17-year-old mentally handicapped Soweto girl, anger over the rape epidemic has reverberated across the nation once again. The men and boys arrested in this case have already seen their first days in court. But most rape cases in South Africa never make it that far and when they do they can take years to complete, like the taxi rape case, and in many instances have resulted in traumatised victims withdrawing charges.

From court delays and the intimidation of victims to poor forensics and investigation, it seems the system meant to protect rape survivors is failing miserably.

A numbers game
When the Criminal Law (Sexual Offences and Related Matters) Amendment Act came into effect on December 16 2007, it reclassified sexual offences into 59 different categories, of which rape is but one. Examples of other forms of sexual offence under the Act include prostitution, public indecency and compelling a child to witness a sexual act.

According to a December 2010 report from the Tshwaranang Legal Advocacy Centre, this makes it impossible to track an increase or decrease in specific sexual crimes such as rape.

To address the issue, the Women’s Legal Centre requested in May 2011 that the South African Police Service provide it with more detailed statistics for sexual offences and conviction rates. What emerged was shocking: of the 92 151 sexual offence complaints received by the police for the period December 16 2007 to June 30 2011, 24 253 were withdrawn before they went to court and 48 349 were withdrawn in court. A verdict of not guilty was reached in 7 611 cases and 11938 cases rendered a guilty verdict — a mere 13% of the offences reported.

In this overall figure was a total of 65 083 complaints of rape. The cases were withdrawn before they went to court in 16 908 instances and 34 741 cases were withdrawn in court. In 5 966 cases, the accused was found not guilty. Guilty verdicts were awarded in only 7 468 cases, which means just more than 11% of women who made it to the police station to report a rape saw their perpetrators pay for their crime.

Bureaucracy and the Bench
Systemic hurdles in the justice system often lead to the postponement of cases. The defence knows this and rape counsellors say they use the system to stall the case, wear out the witness and increase their chances of having it withdrawn or struck from the roll. In their struggle for the lightest possible sentence — preferably a not-guilty verdict — the accused will take as much time as they need to exhaust their options to get off the hook.

In the taxi rape case, Myburgh and Andrews have changed lawyers five times. They did this in an attempt to reach a plea bargain with the prosecution. Each time the plea bargain failed, they tried again with a new lawyer. Each application for a plea bargain meant an automatic six-week postponement.

Section 153 of the Criminal Procedure Act can be another stalling point. It requires that the state brings an application before the court if a case is to be tried in a closed courtroom, something most rape cases require. The application can take even more time should the defence attorney decide to oppose it.

Disarray in the magistrate’s Bench can also contribute to delays. In some cases a magistrate is assigned to the sexual offences court for only one year. After that, he or she is reassigned elsewhere.

Once a magistrate starts to hear a particular case, he or she has to see it through to the end. Magistrates then have to find time to leave their newly assigned courts to return to the sexual offences court for unfinished cases, which leads to more postponements.

One prosecutor said that the only way to reverse this problem would be for the regional magistrate’s court to appoint a permanent magistrate to all sexual offences courts, something general courts that deal with murder, theft, robbery and house-breaking already have.

This top-down approach is slowing down rape cases in other ways. The Tshwaranang Legal Advocacy Centre’s 2010 report found that in 2006 there were 67 sexual offences courts in the country. By October 2010 there were 40 left. Since then, the scenario has worsened.

According to Jennifer Williams, director of the Women’s Legal Centre, a non-profit law centre that advocates for women’s access to justice, there are now only six dedicated sexual offences courts left in all of South Africa.

“Sexual offences courts have a much higher conviction rate when compared to general courts. But with the decrease in sexual offences courts, they have taken away the one thing that works,” she said.

But Mthunzi Mhaga, spokesperson for the National Prosecuting Authority (NPA), said they are attempting to speed up sexual offence cases with the recent implementation of 52 Thuthuzela Care Centres based in healthcare facilities nationally. He said these facilities, which are designed as one-stop-shops where victims can report the crime and receive medical attention and are in direct communication with the courts, had 28 523 cases reported to them in the 2011/2012 financial year.

Mhaga said the NPA supports dedicated sexual offences courts and would be committed to the allocation of specialised sexual offences prosecutors and dedicated magistrates for such courts. However, the original decision to reduce dedicated sexual offence courts lay with the judiciary, not the NPA. According to Mhaga, Chief Justice Mogoeng Mogoeng has indicated his commitment to ensuring that the re-establishment of these courts be reconsidered.

Tlali Tlali, department of justice spokesperson, said they are “prioritising the fight against sexual offences as a cluster effort”, including chairing the Intersectoral Sexual Offences Steering Committee, established through the 2007 Amendment Act. He said the committee met quarterly to review the implementation of the Act and the national policy framework, and to “unblock any blockages which may arise”.

Forensics and investigations
But it is not just the courts that lead to delays and the withdrawal of cases. Sanja Bornman, an attorney at the Women’s Legal Centre, notes that the fragile chain of evidence can be broken at any point.

Once a DNA sample of the accused’s sperm is collected and a rape kit is compiled, it exchanges hands on numerous occasions, passing from the nurse collecting the sample from the victim’s body to the police and finally to the forensics laboratory. At each exchange, the correct documents must be completed and signed by officials handling the evidence. If this does not happen, the defence can dispute the evidence and it is automatically excluded because the onus is on the state to prove its authenticity.

The police are also at fault in terms of crime scene investigation, according to Bornman. In many instances, the crime scene is not investigated properly, whereas other evidence that could have corroborated the victim’s story is lost. One prosecutor, who asked not to be named, said many police officers were not sensitive to the forensics process.

“Forensics needs to go to the crime scene immediately and secure the evidence,” the prosecutor said. “But this doesn’t happen.”

Joyce Doni, counselling co-ordinator for Rape Crisis in Khayelitsha in the Western Cape, said statements taken from victims at police stations immediately after the rape were often inaccurate, which meant the prosecutor could not be sure what the case was and what exactly needed to be prosecuted.

Poor investigation can result in a case that is not strong enough to prosecute. In others, it forces the prosecutor to ask for a postponement to allow more time for investigation, further exacerbating backlogs.

Bornman said many police officers were not aware that the definition of rape had changed since the amendment of 2007. Prior to the amendment, rape was considered non-consensual penetration of the vagina by a male sexual organ. Now, rape is defined as non-consensual anal, vaginal or oral penetration with any object, which means the police may not actually recognise a rape case when it is reported.

Request for comment from Saps on rape investigations and forensic issues had not been responded to at the time of going to press.

Victim disempowerment
Delays and postponements are one thing. The other is the trauma the rape survivor has to endure throughout the lengthy court process.

“It is very difficult to testify, even in a closed court,” said one prosecutor who deals with rape cases. “There are males in the courtroom — the magistrate, a policeman. It is terribly embarrassing for the victim.”

The Constitution grants the defendant the right to be present in the courtroom with the victim, a difficult encounter at the best of times.

Eleanor Williams, a Rape Crisis counsellor who offers court support for rape complainants in four Cape-based regional courts, explaining court proceedings to complainants, said that during cross-examination many victims felt as if they were on trial.

As an example, she said that the defence would interrogate the victim’s sexual past to erode her credibility as a witness. If the victim got emotional about the questions, it could make their testimony inconsistent.

“The victim can be lying about the sexual history because she thinks it will jeopardise her case,” Williams said. And it is these inconsistencies in testimony that can create reasonable doubt, leaving a loophole through which the accused can walk free.

One of the victims in the serial taxi rape case described the defense attorney’s attack on her credibility.

“The cross-examination was horrible,” she said. “In my statement I made commentary about the fact that [one of the accused] had bad skin, like acne-type scarring. I said that he had a circular type of scar on his face.

“The defense — made me walk up to [the accused] and there was no circular mark on his face. Based on the fact that there was no longer a circular mark, the [defence attorney] argued that it could have been somebody else. I asked him if he had ever had acne as a teenager, because I had acne two or three months ago and now my skin is clear. Trying to discredit me on that basis was a bit absurd.”

Victims may participate in counselling, information sessions during court and sessions with the prosecutor in preparation for cross-examination by the defence. But Williams said prosecutors with high caseloads seldom had time to take victims through their statements and prepare them to testify.

Still, it is difficult to prepare rape survivors for the scenarios that may await them in court.

One of the rape survivors in the taxi rape case recalled her experience two years ago when she first went into the courtroom. “He gave me the eye,” she said. “His hands were cuffed. He pointed them at me and pretended to shoot. The girls were scared to testify because they were sitting in the box and the guys are right there.”

But intimidation can stretch beyond the courtroom. Doni, the counselling co-ordinator for Rape Crisis in Khayelitsha, said that even with an accused behind bars, his friends on the outside might intimidate the victim, or the accused might make bail without the victim knowing. Thinking the accused is incarcerated, it can come as a shock for a survivor to suddenly run into her attacker on the street or in a taxi.

Magistrates can also make the trial even harder for the victim. Williams said that overworked magistrates, who did not undergo training in dealing with sexual offences, might not display the necessary sensitivity and intimidate the victim further. Burnout resulting from hearing numerous cases might also lead to a magistrate seeing a victim as “just another case”.

If a magistrate is of the view that a woman is to blame for the rape because she may have worn a short skirt or was drunk, it can severely affect the conviction rate.

One prosecutor working in a sexual offences court pointed out a magistrate with biased views who had contributed to a 90% acquittal rate. A new magistrate reversed the situation with a 100% conviction rate.

Meanwhile, prosecutors’ heavy caseloads are exacerbated because crimes that occur with the sexual offence, such as robbery, must be prosecuted with that sexual offence. In the taxi rape trial, Myburgh is also facing several counts of robbery with aggravating circumstances.

Eleanor Williams said that in some cases prosecutors did not see a case through to the end, another negative factor stemming from large caseloads. This weighs heavily on the victim because it means she has to build a new relationship with the new prosecutor. One scenario is that the victim arrives at court during the trial and meets the new prosecutor for the first time.

In the end, the system conspires with human limitations to guarantee a harsh journey through the legal process for rape victims — perhaps much more so than for perpetrators who, like Myburgh and Andrews, can spend years behind bars without conviction.

The case against Myburgh and Andrews appears solid. Several witnesses have already taken the stand, but it takes a determined victim to see the case through to its end. So far, just four victims have testified. One of the rape survivors, who is still waiting to testify, is taking a brave stance on her meeting with the accused in the courtroom. “They are there, they are going to hear their names, it is going to become reality — what they did, what they’ve taken.”

But whether justice will be served remains to be seen.

Heidi Swart is the Eugene Saldanha Fellow in social justice reporting, sponsored by the Charities Aid Foundation, Southern Africa.

Heidi Swart

Heidi Swart

Heidi Swart has a background in social work and social research. She made a career change to journalism in 2010 when she was accepted for a cadetship at Independent Newspapers. This involved a year of in-house training with the Cape Argus and Independent's investigations unit, under the auspices of veteran investigator Ivor Powell. Following this, she worked at the Cape Community Newspapers for six months, a branch of Independent Newspapers. She completed a six-month internship at the Mail & Guardian's centre for investigative journalism, amaBhungane. She is currently the Eugene Saldanha Fellow for social justice reporting. Read more from Heidi Swart

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