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Avon Global Center for Women and Justice at Cornell Law School - Green Background

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South Africa

  • Minister of Safety and Security v. Katise, Supreme Court of Appeal of South Africa, 2013, South Africa, Supreme Court of Appeal of South Africa, 2013.
    Mr. Katise was arrested when police were called to his home and found that he had attacked his wife. Charges for domestic violence under South Africa’s Domestic Violence Act 116 of 1998 were eventually repealed and after suing for unlawful arrest and detention on the grounds that there was no warrant for his arrest, Mr. Katise was awarded damages. In an appeal, the judge overturned this ruling, citing s 40(1)(q) of the Criminal Procedure Act which allows peace officers to arrest anyone reasonably suspected of violating the Domestic Violence Act of 1998. The judge in this case took an important stand against leniency on domestic violence cases, giving peace officers far more latitude to protect the rights of women and furthering the protection of women’s rights in South Africa, a country marred by sexual violence.
  • Jan Oompie Kolea v. The State, Supreme Court of Appeal of South Africa, 2012, South Africa, Supreme Court of Appeal of South Africa, 2012.
    Mr. Kolea was convicted of repeatedly raping a woman with another man and sentenced to 15 years in prison under s 51(2) of the Criminal Law Amendment Act 105 of 1997 (the Act). When Mr. Kolea appealed the ruling and the sentence it was found that his conviction should in fact be read under s 51(1) of the Act which imposes a minimum sentence of life in prison when the victim was raped more than once by more than one person. Mr. Kolea was duly sentenced to life in prison and his appeal was dismissed. This case broke a previous trend of judges neglecting to impose life sentences under s 51(1), instead giving lighter sentences under s 51(2) even in the case of multiple rapes. The real threat of life imprisonment is a crucial precedent to set in South Africa, where rape is common and often overlooked or punished with leniency.
  • Director of Public Prosecutions, Transvaal v. Minister for Justice and Constitutional Development and Others, South Africa, Constitutional Court, 2009.
    Two men convicted of child rape challenged the constitutionality of the Sexual Offenses Act's amendments to the existing Criminal Procedure Act (CPA).  The amendments permit child victims and witnesses of sexual offenses to participate in modified court proceedings to facilitate testimony.  The lower court declared the amendments to the CPA constitutionally invalid.  The Constitutional Court reversed the ruling, holding  that (1) courts must inquire into the need to appoint  an intermediary in sexual offense trials whenever children  are expected to testify, regardless of whether the state raises the issue; (2) courts may exercise discretion whether to hold proceedings in camera; and (3) courts must give reasons for refusing to allow the use of intermediaries or other safeguards.
  • SONKE Gender Justice Network v. Malema, South Africa, Johannesburg Equality Court, 2009.
    The respondent made comments at a political rally regarding the consent of the alleged rape victim involved in the Zuma rape trial. He was charged with uttering hate speech and engaging in 13. The court found that the respondent's comments were based on prohibited grounds as outlined in South Africa's Equality Act; namely sex and gender. The court also found the comments expressed by the respondent constituted "generalizations about women, rape, and consent which reinforce[d] rape myths." Moreover, the respondent's words suggested "that men need not obtain explicit [sexual] consent from women."  For these reasons, the court concluded the respondent infringed the rights of women and ordered him to pay a fine and make a public apology.
  • Egglestone v. The State, South Africa, Supreme Court of Appeal, 2008.
    A high school teenage girl from an impoverished neighborhood consented to undergo job training as a receptionist at the appellant's escort agency. She alleged that during her training, the appellant held her against her will, and raped and sexually assaulted her. The appellant argued that his conviction should be overturned because the victim had consented.  The court dismissed the kidnapping charges, but upheld the rape and sexual assault charges. The court acknowledged that although the victim consented to parts of the training (i.e. wearing lingerie and taking up residence at the employer's compound), she did not consent to sexual intercourse with the appellant.  The court also noted that because of the appellant's age (twice that of the victim) and his promise of employment, he exercised a dominant position over the victim that made it difficult for her to refuse his advances.
  • N. v. The State, South Africa, Supreme Court of Appeal, 2008.
    The appellant, a minor, was sentenced to 10 years for the rape of a fellow classmate and appeals his sentence on the grounds that it was too excessive.  The lower court sentenced the appellant-defendant to direct imprisonment rather than probation after hearing testimony about the appellant's unrepentant nature and lack of parental supervision.  The Supreme Court of Appeal upheld the decision, finding that correctional supervision would have lacked the appropriate punitive impact demanded by the offense and deterrent effect.
  • Masiya v. Director of Public Prosecutions (Pretoria), South Africa, Constitutional Court, 2007.
    Mr. Masiya was charged with the rape of a nine-year-old girl; at the trial, evidence came out that he had penetrated the girl anally which required a conviction for indecent assault rather than rape.   The High Court, however, amended the common law definition of rape to include anal penetration as well and made the definition gender-neutral.  Mr. Masiya appealed. The Constitutional Court affirmed the High Court and held that the definition of rape must be extended to include nonconsensual anal penetration of females; the Court did say that for the court to extend the definition to include male rape would encroach onto the legislature's prerogative.
  • Omar v. Government of the RSA, South Africa, Constitutional Court, 2006.
    The Durban Magistrate's Court issued a protection order under the Domestic Violence Act 116 of 1998 prohibiting Mr. Omar from abusing his wife, Ms. Joolab, and their children.   When Mr. Omar allegedly breached the terms of that order, the warrant was executed but was subsequently suspended.   He applied to the High Court alleging that section 8 of the Act was unconstitutional and the application was dismissed. On appeal, the Court held that section 8 does not violate the rights of access to the courts and serves to provide a mechanism to ensure compliance with protection orders and protect complainants against further domestic violence. 
  • K v. Ministry of Safety and Security, South Africa, Constitutional Court, 2005.
    K sued to recover damages from the Minister of Safety and Security from being raped and assaulted by three uniformed and on-duty police sergeants.   The High Court held that the actions of the police officers fell out of the scope of their employment and that the Minister could not be held vicariously liable for their conduct.  The Court held that although the police officers' actions were obviously a clear deviation from their duty, there was a sufficiently close relationship between their employment and the wrongful conduct to hold the Minister liable. 
  • Media 24 Ltd. & Another v. Grobler, South Africa, Supreme Court of Appeal, 2005.
    The respondent won a judgment against the appellant for 13 by a manager trainee employed  by the appellant.  On appeal the appellant claimed (1) it could not be held liable for its employee's actions that occurred off work premises, (2) it had no knowledge of the harassment incidences, and (3) the employee was not acting within the scope of employment.   The court held that employers have a legal duty to protect their employees from physical and psychological harm caused by co-employees.
  • S. v. Ferreira and Others, South Africa, Supreme Court of Appeal, 2004.
    The appellant, convicted of hiring two workers to kill her abusive husband, argued for a reduced sentence.  The court held that a lesser sentence is permitted only when there are "truly convincing" circumstances or where a life sentence is disproportionate or unjust. Expert testimony regarding battering and its effects showed how her behavior fit a well-known pattern for abused women.  The court found this testimony convincing and held that the appellant's  use of third parties to kill her husband did not invalidate her claim to be a victim of battering.  Additionally, the court held that appellant's failure to testify should have no effect on her credibility. The court reduced her sentence but declined to acquit the appellant because of the premeditated nature of the act.
  • Van Zijl v. Hoogenhout, South Africa, Supreme Court of Appeal, 2004.
    The appellant suffered years of sexual abuse by her uncle, the respondent, during her childhood.   She sued him for damages at the age of 48 and the respondent claimed that her suit should have been brought within one year of her attaining her majority. The Court held that the victim of sexual abuse as a child who only in adulthood acquired an appreciation of the responsibility of the abuser for the abuse may sue the abuser within three years of acquiring that appreciation.
  • S. v. Engelbrecht, South Africa, High Court, 2003.
    In determining sentencing for a woman convicted of murdering her spouse, expert testimony regarding battered woman syndrome is more relevant to determine sentencing than to determine the legality of the defendant's actions.  The court reviewed a line of cases involving women convicted of murdering their abusive partners.  Although the court cited a variety of mitigating factors that should be considered (e.g., the sustained nature of the abusive conduct, the presence of children in the home,etc.), it held that foremost is the actual effect sustained domestic violence has on women. As a result, the court found expert testimony confirming that the defendant suffered form the syndrome to be a "substantial and compelling" reason to suspend the defendant's sentence. 
  • S. v. M., South Africa, Supreme Court of Appeal, 2002.
    The appellant, M, was tried before a regional magistrate for the rape of his six year old daughter during 1989; he was convicted and sentenced to 10 years imprisonment.  He appeals. The Court held that, especially given the age of the complainant at the time, the question of a consensual sexual relationship is moot and further stipulated that the sexual history of the complainant is not relevant in a charge of rape, unless the Court specifically judges it to be so.
  • S. v. Mahomotsa, South Africa, Supreme Court of Appeal, 2002.
    The accused was charged and convicted on two separate counts of rape for raping two fifteen year old girls more than once and sentenced to 6 years imprisonment on the first and 10 years imprisonment on the second count.  On appeal, the defense was put forward that the sentence was too severe because of mitigating circumstances in that the victims did not suffer serious physical or psychological injuries and that both victims had previously been sexually active. The Court dismissed the appeal and held that the sentences were, in fact, too lenient, especially as the victims' previous sexual history was irrelevant and also that the harm to the victims matters less given that rape is a basic violation of dignity.   The sentence was increased to 8 years for the first count and 12 years for the second.
  • Van Eeden v. Minister of Safety and Security, South Africa, Supreme Court of Appeal, 2002.
    Ms. Van Eeden was assaulted, raped and robbed by Andre Gregory Mohamed, who had escaped from prison, where he was facing 22 charges for indecent assault, rape and armed robbery.   Ms. Van Eeden sued the State for damages arguing that the police owed her a legal duty to take reasonable steps to prevent Mohamed from escaping and causing her harm and that they had negligently failed to comply with such duty.  The Constitutional Court applied its recent holding in Carmichele and held that the state is obliged both by the Constitution and by international law to protect women from violence and the police should be held liable for its negligence in not taking reasonable action to prevent Mohamed's escape, especially in light of the fact that they knew that Mohamed was a dangerous serial rapist who was likely to commit further offenses against women should he escape. 
  • Carmichele v. Minister of Safety and Security, South Africa, Constitutional Court, 2001.
    Ms. Carmichele was sexually assaulted by a man who was awaiting trial for the attempted rape of another woman. Despite the seriousness of the alleged crime and the fact that the man had a prior rape conviction, the police and prosecutor had recommended that the man be released pending trial. Ms. Carmichele sued the Minister for damages, arguing that the police and prosecutors had negligently failed to comply with a legal duty they owed to her to take steps to prevent the man from causing her harm. The High Court dismissed Ms. Carmichele's claim and the Supreme Court of Appeal affirmed, holding that the police and prosecution did not owe her a duty of protection. On appeal, the Constitutional Court set aside the orders of the lower courts and remanded the case to the High Court for trial. It held that the State is obligated by the Constitution and international law to protect the dignity and security of women and in the circumstances, the police recommendation for the assailant's release could amount to wrongful conduct giving rise to liability. The Court also held that prosecutors, who are under a duty to place before the court any information relevant to the refusal or grant of bail, may be held liable for negligently failing to fulfill that duty.
  • S. v. Baloyi, South Africa, Constitutional Court, 2000.
    An army officer was convicted for breaching an interdict issued by a magistrate ordering him not to assault his wife or prevent her or their child from leaving their home.  He appealed to the Transvaal High Court which declared that Section 3(5) of the Prevention of Family Violence Act was unconstitutional to the extent that it placed the burden on him to disprove his guilt. The Constitutional Court overturned the High Court's judgment, finding that the purpose of an interdict was to protect the victim of domestic violence and indicate that society would not stand by in the face of spousal abuse.  As such, fairness to the complainant required that the enquiry proceedings be speedy and dispense with the normal process of charge and plea, but in fairness to the accused, the presumption of innocence would still apply to the summary enquiry. 
  • S. v. Jackson, South Africa, Supreme Court of Appeal, 1997.
    Jackson was charged with the attempted rape of S., a 17-year-old girl when he tied her wrists and attempted to have intercourse with her.   She fought him off and managed to escape the car and subsequently was examined by a doctor who found some evidence of unlubricated sexual contact but no conclusive evidence of penetration.   Jackson appealed on the grounds of the cautionary rule, encouraging that accusations of rape be handled cautiously to prevent false convictions. The Court held that the cautionary rule was based on outdated stereotypes against women and that in criminal cases, the burden is on the State to prove the guilt of the accused beyond a reasonable doubt, without an application of a general cautionary rule.   The Court adopted the formula used in England whereby a judge could choose, on a case by case basis, to use caution only in cases where it was proven that the complainant was untrustworthy for some reason, e.g. had made previous false complaints or bore the defendant a grudge. 
  • Incorporated Law Society v. Wookey, 1912 AD 623, South Africa, Appellant Division, 1912.
    A firm of attorneys was willing to enroll Madeline Wookey as an articled clerk, but Wookey met with opposition from the Cape Law Society, which refused to register her articles. Wookey submitted an application to the Cape Supreme Court, which ordered the Society to register her. The Law Society appealed this decision to the Appellate Division, arguing that Wookey could not be admitted as an attorney because she was a woman. The Appellate Division was called upon to decide whether the term “persons” used in the statute governing admission of attorneys to the bar included only “male persons” or also included women. They determined that “persons” included only male persons, thus excluding women from the legal profession.
  • Schlesin v. Incorporated Law Society, 1909 TSC 363. , South Africa, Transvaal Supreme Court , 1909.
    In 1909, Judge Bristowe of the Transvaal Supreme Court presided over Schlesin v. Incorporated Law Society, the first case in South Africa to consider whether women had a right to enter the legal profession. The Transvaal Supreme Court held that women were barred from admission to legal practice based on historical practice in South Africa, Holland, and England. Judge Bristowe explained that the Interpretation of Laws Proclamation 15 of 1902 provided that “words of the masculine gender shall include females…unless contrary intention appears” and found that given long historical practice, it was evident that contrary intention did indeed appear in the legislation governing admission to the bar.