Rape Unresolved Policing Sexual Offences in South Africa Rape Unresolved Policing Sexual Offences in South Africa DEE SMYTHE Rape Unresolved: Policing Sexual Offences in South Africa First published 2015 by UCT Press an imprint of Juta and Company (Pty) Ltd First Floor Sunclare Building 21 Dreyer Street Claremont 7708 South Africa PO Box 14373, Lansdowne, 7779, Cape Town, South Africa www.uctpress.co.za © 2015, UCT Press ISBN 978-1-91989-589-5 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publisher. Subject to any applicable licensing terms and conditions in the case of electronically supplied publications, a person may engage in fair dealing with a copy of this publication for his or her personal or private use, or his or her research or private study. See Section 12(1)(a) of the Copyright Act 98 of 1978. Project Manager: Ute Kuhlmann Editor: Sandy Shepherd Proofreader: Ute Kuhlmann Typesetter: Nazli Jacobs Indexer: Ethné Clarke Cover designer: Marius Roux, Mr Design Printed in South Africa by The authors and the publisher believe on the strength of due diligence exercised that this work does not contain any material that is the subject of copyright held by another person. In the alternative, they believe that any protected pre-existing material that may be comprised in it has been used with appropriate authority or has been used in circumstances that make such use permissible under the law. This book has been independently peer-reviewed by academics who are experts in the field. Contents Abbreviations ............................................................................................ vii Acknowledgements ................................................................................... ix Chapter 1 Charges Dropped: An Introduction to Attrition in South Africa .............. 1 Chapter 2 Paper Rich: Rape in South African Law & Practice ................................. 24 Chapter 3 The South African Police Service & the Communities they Police ........ 48 Chapter 4 A Sketch of the Cases ............................................................................... 67 Chapter 5 Recalcitrant Victims .................................................................................. 84 Chapter 6 Complainant Withdrawals ...................................................................... 112 Chapter 7 False Complaints ..................................................................................... 140 Chapter 8 Refractory Systems .................................................................................. 162 Chapter 9 Taking Responsibility/Apportioning Blame: Recalcitrant Victims & Refractory Systems ....................................... 187 Annexure 1 Examining Rape Cases ........................................................................... 202 Endnotes .................................................................................................. 211 Table of Cases .......................................................................................... 264 Table of Statutes ...................................................................................... 265 Bibliography ............................................................................................ 266 Index ........................................................................................................ 301 v Abbreviations ANC African National Congress CAS Crime Administration System CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CIAC Crime Information Analysis Centre CLS Centre for Law and Society DVA Domestic Violence Act FCS Family Violence, Child Protection and Sexual Offences GBH Grievous Bodily Harm KZN KwaZulu–Natal NCCS National Crime Combating Strategy NCPS National Crime Prevention Strategy NGO Non-government Organisation NPA National Prosecuting Authority SADC Southern African Development Community SAPS South African Police Service SAP South African Police SPSS Statistical Programme for Social Scientists UN United Nations vii Acknowledgements I have been supported, cajoled, sustained and assisted by a number of wonderful people during the writing of this book. At Stanford, Deborah Rhode, Bob Weisberg, Deborah Hensler, Helen Stacy, Erik Jensen, Jonathan Greenberg, Joel and Rachel Samoff, Anu Kulkarni and Liz Thornberry all sustained me in numerous ways during various visits. George Fisher made me a better scholar and writer – he taught me that you throw down a gauntlet, but run a gantlet! I have been immensely grateful for his support over the past years. At UCT, Steffi Rohrs, Jameelah Omar, Jemima Thomas, Sindiso Mnisi Weeks, Aninka Claassens, Kelley Moult, Elrena van der Spuy, Waheeda Amien, Tracy Gutuza, Kelly Phelps and Marlese von Broembsen have all provided stimulating conversation, support and encouragement. I am fortunate to know and to have worked with Bronwyn Pithey, head of the Sexual Offences and Community Affairs Unit and Western Cape Deputy Director of Public Prosecutions, for a number of years. Bronwyn provided detailed comments on this manuscript, can always be relied on for a reality check and, with Mark Kenny, epitomises how things can work when you have the right people in place. Kath Dey, director of Rape Crisis, provided access to data and her own expertise – she is the most inspiring NGO leader I’ve ever known. Data for this book was collected in two waves. In Cape Town I was assisted by Diane Jefthas, list-maker extraordinaire, friend and whip- cracker. Diane is also co-leading the Pathways to Justice project in KwaZulu-Natal, from which the second wave of data was taken. We have been assisted by Anne Eriksen, Tabitha Paine, Sue Wright, Ricky Rontsch (who has also provided a critical eye and meticulous copy- editing on many drafts of this manuscript), Shirin Taherzadeh, Monica De Souza, Nolundi Luwaya, Claudine Hennessy (who assisted with medico- legal aspects of the Western Cape study), Liam Wantenaar, Babongile Mandela and Vavaviro Gabi. Diane and Tabitha also provided input on various drafts. ix ACKNOWLEDGEMENTS The work on which this book is based has been supported by the Open Society Foundation for South Africa and by the University of Cape Town’s Research Committee (URC). At the time of the Western Cape study, Mzwandile Petros was Provincial Commissioner of Police. He was an extraordinarily brave and visionary leader, of the kind that SAPS needs. Superintendent Dalene Lock assisted with navigating the SAPS bureaucracy, Inspector Kuhn patiently explained the ins and outs of live statistical systems, Sergeant Patience Kwadu assisted with data collection, and Johann Schnettler has done his best to facilitate access along the way. I would also like to thank all the detectives who agreed to be interviewed and spoke frankly about their views and experiences. Theirs is not an easy task. Sam Waterhouse always helped me to think and re-think. Sandy Shepherd, at UCT Press, and Ute Kuhlmann have done a great job of getting this book to print. Three anonymous reviewers provided useful comments and encouragement, for which I am really grateful. Patrick Lowe and Fletcher Smythe-Lowe are a constant source of light, laughter, support and inspiration. Words are not enough to express my gratitude. Finally, I was privileged to serve for five years as a trustee of the Rape Crisis Cape Town Trust. Established in 1976, it is the oldest organisation in South Africa supporting the recovery of rape survivors. Rape Crisis has a vision of a South Africa in which women are safe in their communities and where the criminal justice system supports and empowers rape survivors. Its mission is to promote an end to violence against women, specifically rape, and to assist women to achieve the right to live free from violence by reducing the trauma experienced by rape survivors, encouraging reporting of rape incidents and facilitating the active engagement of communities in challenging high rape rates and flaws in the criminal justice system. At the heart of this vision is a remarkable group of staff and volunteers, supported almost entirely by donations, who provide counselling and support to more than 5 000 new clients a year. I dedicate this book to them and to the women whose stories are recounted in these pages. DEE SMYTHE Kommetjie x CHAPTER 1 Charges Dropped: An Introduction to Attrition in South Africa On a Friday and Saturday you have long queues of people reporting crimes against women and children and then on Monday you have a long queue of people wanting to withdraw these cases ... I am concerned as the Commissioner of Police about the conviction rate of these cases ... If I have a one percent conviction rate I have to be concerned about it.1 Former Western Cape Provincial Police Commissioner Mzwandile Petros It is a warm Friday evening in Masiphumelele, a settlement in the far south of Cape Town, wedged between the Atlantic and Indian Oceans. On her way home from work Tandazwa Mpofu* stops off for a quick drink at a shebeen, one of the tens of thousands of vibrant, informal, and often illegal, drinking establishments found across the country. She phones her sister to join her, but she’s still at work. At the shebeen she takes a chair outside — it is summer, still light, and already getting hot and stuffy inside. A woman invites her to join their