In a curious case of two steps forward, two steps back, the justice department is looking to reinstitute specialised sexual offences courts, which fell out of favour during his predecessor Bridget Mabandla’s tenure.
This was despite the fact that conviction rates at sexual offences courts averaged around 62% compared with 42% at other regional courts. In some sexual offences courts, conviction rates were as high as 80%.
On Tuesday, Radebe released a report produced by a ministerial advisory task team on the adjudication of sexual offences matters (Mattso), commissioned last June to investigate the viability of re-establishing the courts.
"The task team has concluded with their findings and compiled a detailed report which clearly determines that our current court system requires special courts to ensure an adequate response to the special needs of the sexual offence victims," Radebe said.
Radebe said the re-establishment of these courts would enforce a more responsive and effective court system centred around the survivor.
"We have seen a rise in sexual violence against women and children and we cannot remain unmoved as government but we can take steps to ensure that all of those perpetrators of these heinous crimes must be brought to book," he said.
Nuts and bolts
Converting existing courts into specialised sexual offences courts will be no easy feat. The process would require heavy investment in both personnel and technology.
Specialised sexual offences courts require rooms from which accusers can testify, separate private waiting rooms for adult and child witnesses and support services.
A court preparation programme will be needed to prepare witnesses for court and to provide debriefing after they have testified, and a separate debriefing programme will have to be set up for court personnel.
The courts also require technical equipment such as two-way cameras. The courts would need to adhere to national guidelines in terms of technical equipment and require cameras, microphones, monitors and two-way closed-circuit TV cameras, so rape survivors do not have to testify in open court.
The task team recommended that each sexual offenses court have a specially trained presiding officer, two prosecutors, an intermediary, an interpreter, a designated court clerk, a designated social worker, a legal aid practitioner and a victim support officer.
Setting up such a specialised court from scratch would cost over R11-million over three years. The task team however pointed out that many of these courts would not be started from scratch but converted from existing courts.
Earlier this year, acting national deputy director of public prosecutions Thoko Majokweni told Parliament's justice and constitutional development portfolio committee that it was unlikely that the National Prosecuting Authority would meet its target of two prosecutors for each sexual offences court because of "budgetary constraints".
That seems to have changed now with acting NPA head Nomgcobo Jiba saying the NPA was up to the task.
"We do have a budget for the appointment of prosecutors specifically for these other courts. This is not a new project, as you know we have a [Sexual Offences and Community Affairs] unit in the NPA and through that unit we’re able to continuously train those prosecutors," she said.
Radebe said that 57 courts had been identified for upgrades and that work on the implementation of the task team’s recommendations has already begun.
"We have enough in our 2014 budget to ensure that 22 of those courts will be up and running this year,” said Radebe.
"In terms of projections, we think in a three-year period we will have completed properly equipping each of these 57 courts.”
Report welcomed but questions remain
NGOs working with victims of sexual violence on Tuesday welcomed the report and the possibility that dedicated sexual offences courts could soon become a reality. But questions about implementation remain.
"We are hoping this initiative will send a message that our government is serious about dealing with cases of sexual violence against women and children," said Dumisile Nala, chief executive at Childline South Africa.
However, she said, justice for victims of sexual offences did not start when in the courts but at the police station.
"We welcome the development but we also need to look at how we’re attending to children from when they approach the justice system; from when they are taken to give statements [at police stations]," she said.
Nala said in many cases statements were taken so poorly that it was easy for an accused's defence lawyers to simply "rubbish" them.
"For us it’s a continuum and [SAPS and the justice department] need to work together, she said.
Nala said it would also be helpful if the justice department could provide a proper implementation plan in terms of what it hopes to achieve, and by when.
Lisa Vetten, an independent researcher specialising in violence against women, said the announcement was an important acknowledgement on the justice department's part that sexual offences is a special area of prosecution.
"It's something that requires people who are trained, knowledgeable and skilled; it's not for people who are inexperienced and who don't care. That acknowledgement is welcome," she said.
However, Vetten raised concerns about the number of specialised courts that would be set up.
"At this point they're talking about creating 57 specialised courts. With 567 regional courts [in South Africa], you're looking at about 10% of these being specialised. The vast majority – 90% of courts – will get the same [quality] of justice they’ve always got," she said.
“While one accepts not every court can become a sexual offences court overnight, what are they doing to improve the quality of prosecution and justice at other courts?” she asked.
Vetten also pointed out that the task team's report, while admirable, did not constitute legislation and without attending legislation to back it up, there was no compulsion for its recommendations to be implemented or for them to be maintained following a change in leadership at the justice department.
Damage has been done
Meanwhile, the DA’s justice spokesperson Debbie Schafer said the justice department had failed to adequately explain why the successful system had been done away with in the first place.
"In 2006, there were 67 specialised courts. This has dwindled to single figures. It will now take another three years to get back to near where we were seven years ago, and there will still be 12 fewer courts than we had,” she said.
Schafer said the move, together with the scrapping of family violence, sexual offences and child protection units at the South African Police Service, had contributed to the sexual offences scourge and reflects irresponsible leadership by government.
"The fact that the government has now realised the error of its ways is at least to be commended, but the damage that has been done in the meantime is incalculable,” she said.