The State Response to Domestic Violence and Rape

Copyright © November 1995 by Human Rights Watch.
All rights reserved.
Printed in the United States of America.
ISBN 1-56432-162-2
Library of Congress Catalog Number: 95-81632

Human Rights Watch/Africa

Human Rights Watch/Africa division was established in 1988 to monitor and promote the observance of internationally recognized human rights in sub-Saharan Africa. Peter Takirambudde is the executive director; Janet Fleischman is the Washington director; Alex Vines is the research associate; Kimberly Mazyck is the associate; Alison DesForges, Bronwen Manby, Binaifer Nowrojee and Michele Wagner are consultants. William Carmichael is the chair of the advisory committee and Alice Brown is the vice chair.

Human Rights Watch Women's Rights Project

The Human Rights Watch Women's Rights Project was established in 1990 to monitor violence against women and gender discrimination throughout the world. Dorothy Q. Thomas is the director; Regan Ralph is the staff attorney; LaShawn Jefferson is the research associate; Robin Levi is the Orville Schell fellow; Sinsi Hernandez-Cancio is the Women's Law and Public Policy Fellow; Binaifer Nowrojee is the consultant; and Evelyn Miah and Kerry McArthur are the associates. Kathleen Peratis is chair of the advisory committee.



The Reconstruction and Development Programme (RDP) must focus on the reconstruction of family and community life by prioritising and responding to the needs of ... women and children who have been victims of domestic and other forms of violence.1

Recommendations to the Government of South Africa International Law:

Ë While Human Rights Watch is encouraged by the South African government's efforts to sign Convention on the Elimination of All Forms of Discrimination against Women, it urges the government to formally ratify CEDAW without further delay.

Domestic Violence:

Ë The 1993 Prevention of Family Violence Act should be expanded (1) to include protection for individuals who are abused by a partner with whom they have never lived and lesbian and gay couples and (2) to extend jurisdiction over abuse cases to ensure that women can be protected wherever they are in South Africa when the abuse occurs.

Ë The Department of Justice should issue guidelines for magistrates in order to clarify the types of abuse which would qualify for an interdict (a form of restraining order) under the Prevention of Family Violence Act. These guidelines should expressly include both verbal and emotional abuse, in addition to physical abuse.

Ë Delays in payments to agents - the sheriffs - responsible for delivering court orders prohibiting abuse should never be considered a justification for failing immediately to deliver interdicts that have been issued as emergency remedies to domestic violence.

Ë Legal provisions must be introduced to protect counseling service workers who advise abused women from violence or threats of violence directed against them by their clients' abusive partners.

Ë Without diminishing protection to domestically-abused women, policymakers must address the concern that interdicts granted under the Prevention of Family Violence Act may violate the audi alteram partem rule(which allows both sides to present their cases before courts) because such interdicts are issued without a hearing and are for unspecified durations. One possibility might be to create a temporary interdict order which can be made final after a hearing.

Ë Guidelines must be adopted by the police and prosecution service on arrest and prosecution policy so that domestic violence cases are accorded the full attention of the criminal justice system. Family violence cases must not be treated as "private problems" and therefore not suitable for intervention by the criminal justice system. Appropriate sentencing policies must be developed, including compulsory attendance at programs designed for abusive partners.

Ë Prosecutors must be trained to deal with domestic violence cases in accord with clear guidelines. While prosecutional discretion must be safeguarded, prosecutors should be instructed to refrain from dropping cases of domestic abuse and to argue for strict bail conditions to be imposed where there is a history of violent assault.


Ë It should be recognized in law that this crime can be committed by men or women against men or women. The definition of rape should be broadened to include anal and oral penetration as well as penetration by foreign objects such as sticks, bottles, or knives. The definition should focus on coercion by the perpetrator rather than lack of consent by the victim.

Ë Legislation should be introduced to abolish the use of the cautionary rule, which permits courts to exercise an excessive level of discretion in deciding whether or not to credit the testimony of women who allege they have been raped, in cases of rape or sexual assault, on the grounds that it discriminates against women on the basis of sex.

Ë Guidelines on sentencing for rape should be adopted by the Department of Justice and circulated to all judges. At the moment, rape sentences are wide-ranging and appear to be related more to the judge's views on rape than to any consistent application of established standards.

Ë Judges, magistrates, and prosecutors should receive mandatory training on rape and domestic violence and in the use of medico-legal evidence.

Ë A standard course of training on domestic violence, rape, and sexual assault should be completed by new recruits and by serving officers. The government should commission individuals and institutions with expertise in this area to develop such a program and should work together with the relevant government departments to effect its implementation on a national scale. Law enforcement personnel should be trained in procedures and enforcement of the Prevention of Family Violence Act and about the social and psychological context in which domestic violence occurs.

Ë Police are obligated to ensure protection and equal enforcement of the law in domestic abuse cases. Police must be trained to eliminate gender, class and race bias in their responses to such abuse and to realize that domestic violence is not to be excused, tolerated or condoned. Standardized arrest policies should be considered for domestic violence cases.

Ë Police who are involved in investigating rape cases should receive proper training in forensic skills and in the importance of medical information.

Ë Police must provide prompt protection to women by diligently enforcing court orders that prohibit abuse and reduce the abuser's access to the victim. Police stations must make it a priority to respond speedily to a woman's urgent call in cases of domestic violence.

Ë The government should create an independent mechanism to monitor and oversee police treatment of women victims of violence. This body should be empowered to hear complaints and to take steps to sanction policeofficers who do not act professionally, including cases in which the abused woman is a partner of a police officer.

Ë Provincial authorities should review government health services directly responsible for the examination and treatment of rape survivors to ensure the most responsive, effective, and accessible delivery of service.

Ë The Department of Health should establish standardized procedures and services to ensure that all district surgeons are appropriately trained in the treatment of rape and domestic violence survivors. The treatment should be expanded from the collection of medical evidence to the provision of basic medical treatment. This after-care should include, at a minimum, medical treatment, emotional support and referral to the nearest counseling service. District surgeons should be required to provide rape survivors with information about additional existing services in the area.

Ë More district surgeons should be appointed in the rural areas.

Ë Rape reporting centers, modeled on the Hillbrow Medico-Legal Clinic, should be established as widely as possible, and in particular in townships. Such facilities must be staffed by trained police and medical personnel to allow victims to report cases of rape or battery, undergo medical examination, and receive appropriate treatment and counseling.

Ë Abortion laws which protect the right for rape victims to have access to abortion should be upheld without discrimination.

Ë A national multi-disciplinary task-force on violence against women should be created to improve social, medical and legal procedures for women affected by violence. It should include, at a minimum, representatives from the Departments of Justice, Safety and Security, Health and Welfare. Liaison officers in each of the relevant departments at the state and provincial levels should be authorized to communicate and initiate changes within their department in coordination with the other departments and in consultation with nongovernmental organizations. One function would be to expedite the creation of local units, like the Hillbrow Medico-Legal Clinic, to attend to the needs of abused and raped women.

Ë Regional forums, similar to the Johannesburg rape forum, should be established in each province with government and nongovernmental organizations on it. Government representatives should include district surgeons, police, and the Department of Justice.

Ë In each province, the government should form a working group in which governmental and nongovernmental organizations meet on a regular basis in order to improve the government's response to and services for domestic violence and rape victims.

Ë The government should help fund the creation of legal assistance programs, accessible and affordable shelters, as well as counseling services for abused women.

Ë We urge the South African government to improve the collection of data concerning crimes of violence against women. We recommend that the government first conduct a review of all existing statistical information. Such a review should include, at a minimum, the incidence of such violence, the identity of the parties, rates of prosecution and nature of punishment. The collection and reporting of statistics must also be improved, specifically to distinguish domestic violence cases from other assaults. Sufficient details should be recorded to create profiles of victims and perpetrators, including their racial and class status, so that interventionto stop or remedy abuse can be most effectively crafted. Efforts must be made to survey the extent of unreported violence against women.

Ë Studies of the nature and extent of violence against women should be carried out or funded by the government in close cooperation with nongovernmental organizations active in this field.



Women in the Struggle

In the past, black men, and even black women, would say that domestic violence was a white issue. That it didn't happen here. Now, our sisters are coming around the townships, banging on the doors and they are saying it does happen here and we must do something about it. It gives us strength to speak out.10 Women and Poverty Women and Violence While a link between a rise in political violence and a rise in violence against women more generally has not been demonstrated, there is at least circumstantial evidence that those areas worst affected by the uprising against the state and by intra-community political conflict are also those areas where reported rapes are highest. Violence Against Women by the Police Lack of State Resources to Combat Crime and Violence


Marriage and the Family in South African Law38 A Note on "Customary Law" in South Africa The Effect of the New Constitution on Women's Rights (1) Every person shall have the right to equality before the law and to equal protection of the law;

(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.

With reference to the potential conflict between customary law and the new constitution, section 181 of the constitution provides that: "Indigenous law shall be subject to regulation by law." Moreover, according to "constitutional principles" agreed between the parties to the pre-election negotiations, the final constitution adopted by the constitutional assembly must include provisions to the effect that, "[i]ndigenous law, like common law, shall be recognised and applied by the courts, subject to the fundamental rights contained in the Constitution and to legislation dealing specifically therewith."61



All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The U.N. Human Rights Committee, which monitors the compliance of states parties with the ICCPR, has further held that the state not only has a duty to protect its citizens from such violations, but also to investigate violations when they occur and to bring the perpetrators to justice.65

any distinction, exclusion or restriction made on the basis of sex which has the effect of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.66

States which are parties to the convention undertake "to pursue by all appropriate means and without delay a policy of eliminating discrimination against women," which includes the duty "to refrain from engaging in any act of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;" and "to take all appropriate measures, including legislation, to modify or abolish existing laws, customs or practices which constitute discrimination against women."67

(a) Effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence, including inter alia violence and abuse in the family, sexual assault and sexual harassment in the workplace;

(b) Preventive measures, including public information and education programmes to change attitudes concerning the roles and status of men and women;

(c) Protective measures, including refuges, counseling, rehabilitation and support services for women who are the victims of violence or who are at risk of violence.71

The special rapporteur, moreover, asserted that countries should not use tradition or custom as an excuse for abdicating their responsibilities to prevent violence against women.73


Domestic Violence While in the conventional wisdom abuse tends to bring to mind an uneducated, unemployed, working class man hitting his wife mercilessly and repeatedly, literature and intervention with abusive men has revealed that the perpetrators of violence against women include men who hold respectable jobs and positions in society. ... These include lawyers, doctors, psychologists, psychiatrists, priests and business executives. We call such men monsters, yet nearly every woman has had contact with an abusive man at some point in her life. He looks and behaves like any other.88 He was a respected and prominent member of [a religious organization] on campus and lived in a nearby residence. He beat me regularly [over a number of months]... I eventually told my [religious instructor], who told me I shouldn't provoke him ... and should pray for his forgiveness.89 Rape There are many in all the townships, though some rapists aren't called Jackrollers. But in all parts of the townships we haveschool kids who are rolling. They are there for raping, nothing else.113

The Cape Town-based Rape Crisis noted that "most of the women Rape Crisis sees are adolescents. The majority of them have been gang-raped."114 There is, in fact, a township saying that "Jackroll is not a crime, it is just a game."115 A Soweto community leader is quoted as saying:

When you leave your child alone in the home she is not safe. And in the street, she is not safe. And in the school she is not safe. There is nowhere that she can walk and be safe. Girls are afraid somebody in a car will stop them and say `get in.' When they walk in the street they are raped by men with guns. Sexual abuse happens so much that some students stop going to school.116

If they know you, they will kill you after raping you because if they don't, they know you will reveal their names. So, if theyknow you and they rape you, you are fortunate if they don't kill you.118 Men try and get into the halls at the hostels and then they rape women. I live in a hostel next to a bar. The men drink and then they come looking for women in the hostel. The security is bad and the lighting in the halls bad. I came into the hostel one night and as I was walking down the hallway, I was grabbed from behind. The man put his hand over my mouth and tried to rape me. I struggled and finally got away. I didn't see anything and I didn't report anything because I thought it would be no use.120 The police never come here to protect us. They are right there [a few streets away]. They know what is happening, but they don't care.122


My husband has always abused me. He has a drug and alcohol problem. I stayed because I am Catholic and because we have six children, until he kicked me out. He used to tie me to the bed so I couldn't go out. I wasn't allowed to answer the phone. One time, he beat me so bad, he cracked my head and broke one of my fingers. Another time, he burned me with boiling water. Once he put an electric shock through my fingers. I got a peace order against my husband while I was married, but when they came to the house, the police said all they could do was warn my husband. Since my divorce four years ago, my husband harasses me all the time. He follows me. He steals mine and my children's clothes from the line. He comes around the house in the middle of the night. The police arrested him for trespassing three times, but he was immediately released. The police told me that they could not do anything more since we were divorced. In January [1995], I went to get an interdict and the court clerk told me that they couldn't give me one because `everybody's free to walk the streets and live their lives.' Soon after, he threw a burning towel through the window of the house which burnt the curtains and started a fire. Now he is in prison for two months for damaging property.130

Criminal Law They pick him up for one evening, and then he's free (and furious) the next day.138

Even where the police are sensitized to the issue of domestic violence, they may prefer a conciliatory approach to an interventionist strategy. At Sunnyside police station in Pretoria, where the first special police "trauma centre" to deal with domestic violence and other cases of violence against women has been set up, the detectives prefer to mediate a dispute. Even if an assault is taking place as the police arrive, no arrest or charge is made unless the woman asks for the case to go forward. While this approach gives the woman control over the next steps taken bythe police, in some cases she may not be in a fit physical or mental state to make decisions of this sort.139

If the complainant wants to withdraw the case we oblige, because it is a domestic setting. Sometimes, too, when I think that the abuse is not severe and it's the first time, I urge them to get back together and to drop the charges.142

When asked what sort of abuse she considered not serious enough for charges to be brought, the prosecutor replied "if it's a slap or a kick and it's the first time and he is sorry, then I do not encourage her to file charges."143 Another prosecutor in a former homeland indicated that woman reporting domestic violence would alwaysbe referred to a tribal induna, or headman, for him (tribal authorities are almost exclusively male) to resolve the issue. The courts would not handle such cases, regarding them as essentially private matters.144 This sort of informal discouragement by a judicial official can prevent women from gaining access to state protection. In the absence of proper guidelines, prosecutors in each court will presumably hold different beliefs as to the level of abuse that warrants legal sanction.145 Magistrates also may be insensitive to domestic abuse cases: in a criminal case heard at Hillbrow Magistrates' Court in February 1995, a batterer who had allegedly thrown his girlfriend through a plate glass window was acquitted by the magistrate on the ground that it was "reasonably possible that she had tripped over a potplant and fallen through the window." The history of abuse in the relationship was inadmissible evidence.146

Civil Remedies: "Peace Orders" and the Prevention of Family Violence Act Women who have been beaten by their husbands must get an interdict with the court. When this interdict is violated by the husband, she must go back to the courts again and return to us with a letter from the magistrate before we can do anything. Theproblem is many women come in here before that without real interdicts.178

When his ignorance of the interdict procedure was pointed out to him, he stated:

We have a different type of interdict here [in Alexandra]. Maybe what you are describing happens elsewhere in the country. Over here, we don't even get notified of some laws because we are in a township. So maybe the station commander has not been told of this new law.179

The last time in December [1994], he fractured my nose by hitting me with a pipe and tried to rape me in front of our child. But I didn't bother to go to the police because they won't do anything. I'm filing for a divorce.182

Molly, a coloured housewife, married for eighteen years, was granted an interdict because her husband regularly became violent when he was drunk. She told Human Rights Watch,

My husband beats me when he is drunk. I always call the police - they come and warn my husband. But then they say that they can't do anything more because it is a domestic affair and leave. I did get an interdict, but I think my husband destroyed it.183

Sally, a coloured woman and a housewife married for sixteen years has been regularly abused by her husband, who has been convicted for armed robbery in the past. "At first," she said,

I thought that it was part of the marriage. My husband comes home drunk all the time and abuses me. Many times, he has forced me to have sex with him. He threatens me with his gun if I do not give him oral sex. I am now hiding at my mother's house. I am too scared to get an interdict. What will the police do? Nothing.184

Pumla Ngewu, a counselor at the Cape Town-based organization Ilitha Labantu noted that in Guguletu township the police were completely unhelpful except for one officer: "When Sergeant Adonis is there, the women who go in are helped. Otherwise, they face problems."185

There have been a number of cases in which women have been driven to suicide. There was one case in which a woman married to a policeman complained to her husband's senior. He would not believe her because the man is a good policeman. Around November 1994, she shot herself.186 I called them to stop my husband from beating me. I had an interdict so they could arrest them. It took the police one hour to come to my house. By that time, my husband had left. I told thepolice where my husband had gone. But they were unwilling to go there and arrest him.200

Frequently, women are told that they must wait for a police vehicle to become available before the police will come to stop the abuse.

totally insensitive to the abuse the woman had suffered and her fear. In fact, in choosing to believe the husband (who had been served with an interdict that morning), they sent a strong message to her that the police, like so many other members of society, are going to take the man's word and treat the women's rights as ancillary.204 Inadequate and Uncoordinated Government Services Abused women need many diverse services: emergency shelter, medical care, protection, financial assistance and counseling services. One agency alone cannot offer all these services, therefore it is imperative that services are well coordinated and that the various professionals understand how other agencies view the problem and deal with it. ... Today, women in South Africa are experiencing great difficulty in securing adequate treatment ... the lack of collaboration between agencies results in services for abused women being prone to fragmentation, discontinuity and inaccessibility.220

Joanne Fedler, a lawyer with People Opposing Women Abuse (POWA) has noted:

Battered women do not need the law's sympathy. Nor do they need to become the symbol of the extent to which a particular government cares for the disempowered. They need safety. They need maintenance. They need a roof over their heads. They need work. They need legal advice that is responsive to the unique circumstances in which they find themselves. A commitment to ending violence in the home must deliver to women the means of survival. Only then will legislative improvements to the Prevention of Family Violence Act be a measure of the extent to which women's lives are valued.221

Any attempt to address domestic violence requires an approach which takes into consideration the structural and social factors that place women at risk. The haphazard and often inadequate treatment that abused women experience contributes to their reluctance to seek government assistance and results in women returning to face more abuse because of a lack of viable options.



I was raped in October 1994. I was in my boyfriend's apartment cooking. His roommate and I were there alone. His roommate came from behind into the kitchen and attacked me. He dragged me to the bedroom. He raped me. I screamed and struggled. I scratched him until he had marks all over his face. There was blood everywhere. All the time, he was threatening to kill me. Then he picked up a knife and told me he would kill me if I told anyone. I was so scared he was going to kill me, I threw myself out of the window. I fell three floors to the ground. My pelvis and spine were broken. See these scars on my legs, they are from the broken glass of the window. I was hospitalized and then in a wheelchair for three months. Even now, I have to wear this medical corset to support my spine and I can't stand for long. I don't have a job any more because I cannot travel anywhere. I still get dreams about the rape. I have two children I have to support. I reported the case to the police. I told them I know the man and that he had scratches on his face. But the police have done nothing. I even see him around here every once in a while. What's the use of going back?222

In order to prosecute for rape, a woman must deal with the district surgeon [i.e. a government doctor], the prosecutor and the judge. With all three, there are potential problems.227

The Police

The detectives made it into a small thing, but for me it was my life. I tried to commit suicide a few months after it happened. I just felt nothing was being done.228

humiliating, and worse than the rape itself. I felt dehumanised at the way I was treated. The police officers lacked sensitivity in dealing with my trauma. Instead, they joked openly about what happened to me, and I felt as though I was the perpetrator rather than the victim.230 I was beaten by my boyfriend, who is unemployed. One day in February [1995] he beat me so badly and raped me that I couldn't walk. My face was swollen from all the beating and I had to have eight stitches on the back of my head. I went to the police, and told them where to find him. The police told me that they will have nothing to do with the case because he is my boyfriend.232 A woman was raped at Sea Cow Lake. She reported it to Greenwood Park Police Station. All the procedures were followed correctly and the case went to trial. The day of the trial the investigating officer arrived approximately two hours late to court. It then turned out that he had lost the "docket" for the case which he had to hand over to the court. Valuable evidence was lost as a result. Statements from the rape survivor and other witnesses also had to be taken again - approximately nine months after the rape. As a result of the time delay, some witnesses could not be traced and some witnesses could not remember certain details. The accused was acquitted.233

In another case, she noted that:

A woman was raped in Newlands East in her home by a family friend. She followed the correct procedure and called the police immediately. Statements were taken and she was taken to a district surgeon. The case went to trial. The investigating officer was called in to testify as to the scene of the crime. He gave the wrong information in terms of essential technical detail. It also became clear in court that he overlooked important aspects of the crime during his investigation. As a result, the evidencepresented to the court was pretty flimsy. The accused was acquitted.234

It is a matter of the police commissioners making this an issue a priority. If they would do that, then you would not have police being rude to rape survivors or sloppy police investigations. Rape survivors are frequently being told that there are no police vehicles available to transport them from the station to the district surgeon for a medical examination. They sometimes wait hours. However, when a drunk driver needs to be transported to the district surgeon, that is done immediately. It is an issue of priority.242 District Surgeons The Courts There must be blood and tears to prove rape. Judges and prosecutors often do not believe that a woman can be raped without such injuries. I've sat in cases where a woman, who has been raped over a year ago and gone through counseling, has got up on the stand and been strong or become angry while testifying. Immediately, something clicks in the minds of those in the courtroom. Their image of a raped victim is some helpless, weeping woman violently attacked by a stranger. If you do not fit that stereotype, then you couldn't have been raped.250 Experience has shown that it is dangerous to rely on the uncorroborated evidence of the complainant in such circumstances... [A] complainant could be motivated by an emotional reaction or spite, an innocent man might be falsely accused because of his wealth, the complainant might be forced by circumstances to admit that she had intercourse and then represent willing intercourse as rape.0

The words "neurotic," "spiteful," "sexually frustrated," and "unpredictably emotional" all conjure up stereotypical images of unstable women who are prima facie deceitful, flocking to bring contrived rape charges against innocent men.

that the nature and circumstances of the alleged offence need not be considered carefully. Where the complainant is a single witness the cautionary rule relating to single witnesses will obviously apply. Where any motive for a false charge is suggested by the accused or appears from the evidence, this must carefully be considered. In the end, however, only one test applies, namely was the accused's guilt proved beyondreasonable doubt and this test must be the same whether the crime is theft or rape."3 To my mind, it is a mitigating factor in that the shock and affront to dignity suffered by the rape victim would be ordinarily less inthe case where the rapist is a person well-known to the victim and someone moving in the same social milieu as the victim. ... In my opinion the lack of any serious injury to the complainant and the fact that she was evidently a woman of experience from the sexual point of view, justice would be served by a suspension of half the sentence imposed.5 She may have been overcome by shame, disgust or remorse (perhaps even alcoholic remorse) at the fact that she had consented to intercourse with the appellant; she may have been sexually frustrated because of the appellant's drunken state ... she may have been filled with revulsion at the unusual sexual acts to which the appellant had wanted her to submit, whether or not she was a willing party to such acts ... or she may simply have become afraid, with the coming of the morning. It is true that these possibilities are speculative and that a court is not usually required to speculate on possibilities having no foundation in the evidence placed before it. ... It is precisely because of the difficulty of discerning hidden motives that cases of this nature require special treatment. ... In my view there can be no doubt, however, that the risk of a false motive is present in the circumstances of this case, even though the motive for it may not be readily apparent.6

The accused was thus acquitted.

Township Justice I finally went to the comrades because the police had not done anything and the man who raped me was still walking around thetownship, while I had to be hospitalized for two months. The comrades caught the man and brought him to a public meeting. They made me talk about the rape before whole room full of men. I described everything, because I thought that finally I would get some justice. Before this, I had been telling people that I was in hospital because of a car accident. I didn't want to talk about my rape because of the way people treat you - like you have a disease. The man admitted that he had raped me. He signed a note agreeing to pay me R.15,000 [U.S.$4,300]. But since that time, nothing has been done. I don't even want him to be arrested any more. What will that do? I want him to pay me the money which I had to spend on medical bills.27 People make the mistake of thinking that illiteracy means ignorance. Just because we are not educated does not mean that we cannot identify the right person. We are not stupid.28

The two comrades denied that they had ever killed a person as part of "disciplining," but others in the township acknowledged that comrades on occasion had killed alleged perpetrators. As Mmatshilo Motsei of the Agisanang Domestic Abuse Prevention and Training (ADAPT) stated: "It's difficult to grow up in these townships as a black man. It's dehumanizing and has resulted in a lack of respect for life. So, not surprisingly, while some of these comrades are youth leaders, many of them are just thugs."29

The problem is not the police. We're trying to do our best. It is the courts that are the problem. If they don't have enough time to investigate cases, then the cases get dropped. The police are overloaded. It's also difficult to find the complainant often times. In some parts of the township it is not safe for a policeman to go.30


The police are becoming more user-friendly in the new South Africa and are trying to change their image. Previously, they were difficult to approach, but now are more open to training. However, this change of attitude is completely dependent on the station commander. Only if the station commander is sympathetic will the station assist women. In other stations, such as the KwaMashu police station (in the former KwaZulu Homeland), nothing has changed. Women continue to have great difficulty reporting rape because of the attitudes of the police posted there and corruption. 32 I know that the police are lacking in a number of respects. We are aware that raped women have to make complaints in opencharge rooms in front of everyone; that detectives do not investigate rape dockets thoroughly, that district surgeons often refuse to come out at night to examine a rape victim.33 women's issues get shunted between the Department of Justice and the Reconstruction and Development Programme (RDP). Women are falling through the cracks. The government needs to create a framework. You can't just pass the Prevention of Family Violence Act, or have an individual reporting center. It must be reinforced at all levels in the government. You can't discuss these issues without looking at the past policies of migrant labour and apartheid and how black women are worst affected.35

The lack of services evident in the urban areas is multiplied in the rural areas, especially the former homelands. State services are virtually nonexistent, police more ignorant and more prejudiced, and women themselves less educated and with access to fewer personal resources. Those few nongovernmental organizations that operate in these areas are even more overstretched and underresourced in both financial and personnel terms than those in the cities.



The Wynberg Sexual Offences Court There has been a remarkable improvement in the manner in which rape cases are prosecuted here. It's not perfect. But it is an improvement. Because we have one more prosecutor, we can prepare our case load better. As a result, conviction rates are almost 20 percent higher than other courts in the country. It is because our cases and witnesses are better prepared. The six rotating magistrates who hear these cases have become more sensitive to the trauma of rape survivors and no longer make rude or offensive comments to rape victims or allow inadmissible questions.41 The court was designed to prevent the secondary victimization that raped women face in the justice system. But now, because the case load is so high, we have a back-log. The overflow gets sent downstairs to the regular courts. But that defeats the purpose of having a Sexual Offenses Court. We have asked theAttorney General for a second court, but so far one has not been created.43 Rape Reporting Centers: Hillbrow and Newcastle

The Declaration on the Elimination of Violence against Women

The General Assembly,

Article 1
Article 2
Article 3
Article 4
Article 5
Article 6
1 The Reconstruction and Development Programme of the Government of National Unity (RDP) sets out the policy goals and strategies of the new government. The original RDP document forms the basis of the policies of the new government, and has been succeeded by a white paper which sets out RDP priorities in greater detail. Government of South Africa, The Reconstruction and Development Programme, (Johannesburg: African National Congress, 1994), section 2.13.15.

2 The text of the interim constitution was agreed to at the multiparty negotiations that led to a new government, and was passed by the old (all-white) parliament as the Constitution of the Republic of South Africa Act (Act No.200 of 1993). It came into effect on the first day of the elections and will remain in effect until a final constitution is adopted during 1996 by the National Assembly and Senate, elected in April 1994, sitting jointly as a constitutional assembly.

3 The preamble to the interim constitution declares that "[a]ll South Africans will be entitled to a common South African citizenship in a sovereign and democratic state in which there is equality between men and women." The bill of rights (Chapter 3) also guarantees equality before the law to "all persons," and states that "no person shall be unfairly discriminated against, directly or indirectly [on the grounds of] gender [or] sex."

4 Of the 400 members of the national assembly, there are 106 women. Six members of the cabinet are women: Minister for Health Nkosazana Zuma; Minister for Public Enterprises Stella Sigcau; Minister for Housing Sankie Nkondo; Deputy Minister for Arts, Culture, Science and Technology Brigitte Mabandla; Deputy Minister for Agriculture Thoko Msane; and Deputy Minister for Welfare Geraldine Fraser-Moleketi.

5 The term "domestic violence" is used in this report to refer to violence between spouses or sexual partners, not necessarily occurring at home - although in practice the majority of such violence will occur in the home. In addition, although this report often distinguishes domestic violence from rape for the purposes of examining the criminal justice system's distinct treatment of these abuses, it in no way means to suggest that domestic violence does not include rape.

6 There is an ongoing debate over the use of the word "victim" to describe women who have experienced domestic abuse or rape. Many find this term disempowering and believe that the word "survivor" more aptly describes their struggle to deal with both the violence and the law enforcement system. Both terms are used interchangeably in this report in the recognition that battered and raped women are both victims and survivors. Of course some victims do not survive.

7 These nongovernmental organizations include, among others, the Advice Desk for Abused Women, Agisanang Domestic Abuse Prevention and Training (ADAPT), Black Sash, Centre for the Study of Violence and Reconciliation, Crisis Line, End Racism and Sexism Through Education (ERASE), 702 Helpline, Ilitha LaBantu, Ikinross Women's League, Kimberley Rape Crisis Committee, Lawyers for Human Rights, Lifeline, National Institute for Crime Prevention and Rehabilitation of Offenders (NICRO), NISAA Institute for Women's Development, People Opposing Women Abuse (POWA), Rape Crisis, Salvation Army, Women Against Women Abuse (WAWA), Woman and Child Project, Women's Health Project and Yohuselo Haven for Battered Women.

8 Government of South Africa, The Reconstruction and Development Programme of the Government of National Unity, section 2.13.15.

9 Constitution of the Republic of South Africa Act (Act No.200 of 1993), section 119. See further below, in the section on the position of women under South African law.

10 Interview, Alexandra Community Center, February 17, 1995.

11 The poorest 40 percent of households in South Africa (equivalent to 53 percent of the population), accounts for less than 10 percent of total consumption, while the richest 10 percent (equivalent to 5.8 percent of the population) accounts for over 40 percent of consumption. South Africa's Gini coefficient, which measures inequality, is much worse than that of most countries with a similar per capita Gross National Product, and about the same as the worst, Brazil. A Gini coefficient of 0 signifies absolute equality, and 1 signifies absolute concentration of wealth: South Africa's Gini coefficient is 0.61 (GNP per capita U.S.$2,670); Brazil's 0.63 (GNP per capita 2,770); Poland's 0.27 (GNP per capita U.S.$1,910); Chile's 0.58 (GNP per capita U.S.$2,730); Kenya's 0.57 (GNP per capitaU.S.$310); Zambia's 0.44 (GNP per capita U.S.$370). The World Bank, Key Indicators of Poverty in South Africa: An Analysis Prepared for the Office of the Reconstruction and Development Programme by the World Bank, based on the South Africa Living Standards Survey, coordinated by the Southern Africa Labour and Development Research Unit at the University of Cape Town (Pretoria: Office of the President, 1995), p.8.

12 In this report, "black" will be used to refer to South Africans previously classified by the apartheid system as "African" or "black" (of solely African ancestry), "Indian" or "Asian" (largely descended from indentured servants brought from the Indian subcontinent to work the sugar plantations in Natal), "coloured" (of mixed ancestry) and "white" (of European ancestry). The subcategories will also be used, since their previous racial classification remains relevant to the living circumstances of all women in South Africa.

13 See generally, Cherryl Walker, Women and Resistance in South Africa (Cape Town: David Philip, 1991).

14 See generally, Francis Wilson and Mamphela Ramphele, Uprooting Poverty, (Cape Town and Johannesburg: David Philip, 1989).

15 The World Bank, Key Indicators of Poverty in South Africa, p.13.

16 In 1993 it was estimated by the Department of National Health and Population Development that 68 percent of Africans living in rural areas and 32 percent in urban areas had an income below the official government poverty line (R.1,200 per family per month (about U.S.$340)). Forty-five percent of rural coloureds and Indians, 23 percent of urban coloureds, 8 percent of urban Indians, and less than 1 percent of urban whites were also poor by this definition. South African Institute of Race Relations, Race Relations Survey 1993/94 (Johannesburg: SAIRR, 1994), pp.490-491.

17 An estimated 54.99 percent of the adult population of South Africa is female, and 45.43 percent of the total population is under eighteen years of age. In the former homelands, the gender and age imbalance is even more marked. Figures supplied by the World Bank.

18 The World Bank, Key Indicators of Poverty in South Africa, p.12.

19 Ibid., p.20.

20 Ibid., pp.15,16. This figure may underestimate the unemployment rate for women, since many women who defined themselves as housewives in the survey would actually like to work out of the home. Average unemployment rates, defined as those who are not working but would like to work and are either actively seeking work or have given up looking, are 35 percent for women and 25 percent for men. Forty-eight percent of working-age women are in poor households, compared to 42 percent of working age men.

21 South African Institute of Race Relations, Race Relations Survey 1993/4, p.457. The position of domestic workers was improved by the 1993 extension of the Basic Conditions of Employment Act to apply to domestic workers.

22 Sandra Hill Lanz, Women on Farms (Pretoria: Lawyers for Human Rights, 1994).

23 RDP Office, Beijing Conference Report: 1994 Country Report on the Status of South African Women (Pretoria: Office of the President, 1995), p.36.

24 Moreover, 39 percent of the population lives in households without a resident male head, and these households make up 50 percent of those who fall in the poorest 20 percent of the population. Nearly 70 percent of female-headed households are poor (that is, they fall in the poorest 40 percent of the population), while households with a resident male head have a poverty rate of 43 percent. The World Bank, Key Indicators of Poverty in South Africa, p.14.

25 The World Health Organisation reports South Africa's murder rate as fifty-four per hundred thousand; another study has put the figure even higher, at ninety-four per hundred thousand. "Shock murder figures for SA," City Press, March 5, 1995; "SA gets `most violent' label," The Star, March 27, 1995. These figures are averages, and the rates are much higher in some localities: Human Rights Watch calculated a murder rate of 193 per hundred thousand during an investigation of violence on the Natal South Coast in late 1994: Human Rights Watch/Africa, "Threats to a New Democracy: Continuing Violence in KwaZulu-Natal," A Human Rights Watch Short Report, May 1995.

26 For background on the history of political violence in South Africa and particularly KwaZulu-Natal, see Africa Watch, The Killings in South Africa: The Role of the Security Forces and the Response of the State (New York: Human Rights Watch, 1991); Africa Watch, "Half-Hearted Reform: The Official Response to the Rising Tide of Violence," A Human Rights Watch Short Report, vol. 10, no. 2, May 1993; Africa Watch, "'Traditional' Dictatorship: One Party State in KwaZulu Homeland Threatens Transition to Democracy," A Human Rights Watch Short Report, vol. 5, no. 12, September 1993; Human Rights Watch/Africa, "Impunity for Human Rights Abuses in Two Homelands: Reports on KwaZulu and Bophuthatswana," A Human Rights Watch Short Report, vol. 6, no. 2, March 1994; Human Rights Watch/Africa, "Threats to a New Democracy: Continuing Political Violence in KwaZulu-Natal," A Human Rights Watch Short Report, vol. 7, no. 3., May 1995.

27 According to World Bank calculations based on figures supplied by the government's Central Statistical Service, women form 60.48 percent of the adult population in the former KwaZulu, and children 53.36 percent of the total population of the homeland area. Table supplied by the World Bank.

28 Human Rights Committee of South Africa, "Human Rights Update for Week 30," (Johannesburg, July 1995).

29 See Catherine Campbell, "Learning to Kill? Masculinity, the Family and Violence in Natal," Journal of Southern African Studies, Vol.18, No.3, September 1992. The observations of the Campbell article have been confirmed by conversations of Human Rights Watch representatives in conversations with activists especially in the KwaZulu-Natal region.

30 "The Record of Understanding Signed by Mr. F.W. de Klerk and Dr. Nelson Mandela: An Inkatha Freedom Party Assessment," address by Chief Buthelezi in Mmabatho, Bophuthatswana, September 29, 1992.

31 Quoted in Campbell, "Learning to Kill?"

32 Interim Report of the Ralushai Commission of Inquiry into Witchcraft Violence and Ritual Murder in the Northern Province submitted to Advocate Seth Nthai, Member of the Executive Council for Safety and Security, Northern Province, July 1995, p.128.

33 Centre for Victims of Violence and Torture and Independent Board of Inquiry, Breaking with the Past? (Johannesburg: Network of Independent Monitors, Trauma , April 1995), p.84.

34 Khangale Makhado, "Two women sue govt. for R.50 000," The Sowetan, July 24, 1995.

35 Centre for Victims of Violence and Torture and Independent Board of Inquiry, Breaking with the Past? p.123 and 124. The police subsequently went to the clinic where her husband was being treated, removed him and took him to the police station, with two other "suspects," where the woman later heard screams. Seven members of the Vanderbijlpark Murder and Robbery Unit were charged with two counts of attempted murder, two counts of kidnaping and one count of assault with intent to cause grievous bodily harm. All of the accused remained on duty while the case was proceeding.

36 For example, a police constable was charged with rape in August 1995, after allegedly raping a woman while she was held in the cells at the Carletonville police station and offering her R.100 (U.S.$33) to keep quiet. "Alleged rape in cell: Const is charged," The Citizen, August 10, 1995. In May 1995, a police sergeant was sentenced to five years prison for raping a fifteen year old girl inside the Mabopane police station in August 1994, after she had come to the police to report another rape. "5 Years for Cop who Raped a Rape Victim," The Sowetan, June 1, 1995; interview, advice office worker, KaNgwane, September 8, 1995.

37 "Shock murder figures for SA," City Press, March 5, 1995.

38 This section relies heavily on Cathi Albertyn, "The Legal Status of Women: Marriage, Family and Inheritance," unpublished paper, 1992, and on June Sinclair "Family Rights," in D. van Wyk et al, Rights and Constitutionalism: The New South African Legal Order (Cape Town: Juta and Co., 1994).

39 Marriages must be solemnized by a duly appointed "marriage officer." In most cases, a Christian minister of religion is a marriage officer; however, many ministers of African independent churches have not been appointed marriage officers in accordance with the act, and African marriages in such churches are therefore considered to be under customary law.

40 Although women in African customary unions have been given some protection by other statutes and Hindu marriages may be recognized if the priest is a marriage officer "under the Marriage Act."

41 General Law Fourth Amendment Act (Act No.132 of 1993). The legislation also repealed a number of other discriminatory laws relating, inter alia, to citizenship, attendance at trials, dismissal of female employees if they marry, the position of the husband as "head of the household," and generally to legal capacity. More controversially, the provision prohibiting women from performing dangerous work or night shifts at mines was also repealed.

42 This legal position was reflected in customary practices, according to which a man has the right to determine the people his wife associates with, her clothes, whether she may seek employment, even whether she may visit a doctor. The legal position could be altered by an ante-nuptial contract to exclude the marital power, or by a declaration to a magistrate that the marriage was in community of property, but these provisions were rarely used.

43 KwaZulu Legislative Assembly Act on the Code of Zulu Law (Act No.16 of 1985), section 27(3).

44 For example, a woman in a customary union has rights in respect of her husband's pension, or to compensation if he is killed at work, and her customary inheritance and property rights are protected to some extent.

45 Lobola (the Zulu name for brideprice, also known as lobolo or bohadi, in other South African languages) is an important part of most marriages in (uncodified) customary law and not uncommonly accompanies civil marriages. It involves the payment of cattle (or, nowadays, a cash substitute) by the prospective husband to the father of the bride, traditionally in consideration of the transfer of the woman and her reproductive capacity to the family of the husband. One of the major purposes of lobola was to provide security for the woman should the marriage fail through no fault of hers.

46 Section 14(3) of the interim constitution provides that: "Nothing in this Chapter shall preclude legislation recognizing - (a) a system of personal and family law adhered to by persons professing a particular religion; and (b) the validity of marriages concluded under a system of religious law subject to specified procedures." Although the implications are not clear, this section raises the possibility that a legislated system of Muslim and Hindu personal law that is discriminatory to women, might be immune to constitutional challenge. Customary law is not given this protection. However, the final constitution may of course change this provision.

47 In the event of death at work, the Workman's Compensation Act (Act No.30 of 1941) provides that a dependent cohabiter has a claim, provided that no formal marriage remains in force.

48 Section 11(3)(b) of the Black Administration Act (No.38 of 1927). This does not apply, however, to African women living in KwaZulu-Natal, all of whom were given majority status during the 1980s: the Black Administration Act was amended in 1985 to provide that the majority status of African women resident in Natal was not affected by marriage under customary law; while the Natal Code of Zulu Law was amended in 1987 and the KwaZulu Act on the Code of Zulu Law was amended in 1982 to provide that all African persons attained majority at twenty-one, irrespective of marital status. According to the Age of Majority Act (Act No. 57 of 1972), a person generally attains majority under South African law at the age of twenty-one years. This rule applies equally to persons of all races, except in the case of customary unions, as described above, or where a right or obligation of an African person depends upon a "Black law," when that law takes precedence.

49 According to research by the Human Sciences Research Council published in April 1994, South Africa's divorce rate is amongst the three highest in the world: South African Institute of Race Relations, Race Relations Survey 1994/95, p.300. Research conducted by the Socio-Legal Unit of the University of Cape Town suggests that in Cape Town probably over 50 percent of African marriages, contracted by civil or customary law, end in de facto divorce: Sandra Burman "Capitalising on African Strengths: Women, Welfare and the Law," South African Journal on Human Rights (1991), vol.7, p.215.

50 In 1929, a "black divorce court" was established (by the Black Administration Amendment Act No.9 of 1929), which had concurrent jurisdiction with the Supreme Court for hearing divorces of African couples who chose that route. Parties may appear without legal representation.

51 Ina Snyman, "The Victimization of Women in the Law Enforcement System," in W.J.Schurink et al., Victimization: Nature and Trends (Pretoria: Human Sciences Research Council, 1992). In 1991, the Maintenance Amendment Act (Act No.2 of 1991) introduced new measures against defaulters on maintenance payments.

52 "Mild chastisement" and adultery are not grounds for a woman to divorce her husband under customary law. Fault on the part of the husband includes a public rejection of his wife for no just reason. A "just reason" includes a wife's neglect of her duties at home or neglect of her children, denying her husband sexual intercourse and continuing infidelity.

53 In the case of African children born out of wedlock, maintenance may not be claimed through the maintenance courts if the man has paid the customary "seduction damages" and a payment to the girl's guardian for maintenance of the child (isondlo in Xhosa). Under the official, court-recognized, version of Xhosa customary law the customary amount forseduction damages is five cattle and for isondlo one cow, although money is usually substituted for cattle. However, differing interpretations of customary law among the courts and the two families involved may well arise. Sandra Burman and Shirley Berger, "When Family Support Fails: The Problems of Maintenance Payments in Apartheid South Africa," South African Journal on Human Rights (1988), vol.4, p.194 (Part I) and p.334 (Part II).

54 Sandra Burman and Amanda Barratt, Welfare Law and Bureaucracy in a Changing South Africa: A Case Study of Maintenance Grants for the Illegitimate (Johannesburg: Centre for Applied Legal Studies, Working Paper 19, 1993).

55 Since the Maintenance of Surviving Spouses Act (Act No.27 of 1990), which overturned a case which had decided the opposite.

56 Black Administration Act, section 23; The Intestate Succession Act (Act No.81 of 1987), applicable to civil marriages, may apply to customary marriages in certain circumstances.

57 Martin Chanock, Law Custom and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge: Cambridge University Press, 1985).

58 A well-known study on the legal position of African women in South Africa under the colonial and apartheid systems, published in 1968, concluded that the Natal Code of Zulu Law, promulgated in 1891, supposedly as a codification of the existing tribal system of law, "stereotypes a concept of feminine inferiority unknown to the traditional society and burdens women in Natal with disabilities that they do not suffer in the other provinces." H.J. Simons, African Women - Their Legal Status in South Africa (London: Hurst and Co., 1968).

59 See generally, Thandabantu Nhlapo, "Women's Rights and the Family in Traditional and Customary Law," in Susan Bazilli (ed.), Putting Women on the Agenda (Johannesburg: Ravan Press, 1991); and the essays in T.W. Bennett et al (eds.), African Customary Law (Cape Town: Juta and Co., 1991).

60 Under apartheid as originally conceived, all black South Africans would lose their South African citizenship and become instead citizens of theoretically independent states within South Africa's borders. However, although all substantial ethnic groups of African origin in South Africa were eventually assigned to a particular homeland, the system was never entirely realized. Many Africans continued to live - legally or illegally - in areas officially designated for whites only; moreover, only four of the homelands (Transkei, Bophuthatswana, Venda and Ciskei; "the TBVC states") ever became even nominally independent. The remaining six (KwaZulu, KaNgwane, Lebowa, Gazankulu, QwaQwa and KwaNdebele) were known as "self-governing territories" and did not have "sovereign" status within South African law, although they did have a large measure of legislative and executive autonomy.

61 Constitution of the Republic of South Africa Act (Act No.200 of 1993). Schedule 4, Principle XIII, as amended; emphasis added.

62 For additional discussions of international obligations with respect to violence against women by private actors, see also Dorothy Q. Thomas and Michele Beasley, "Domestic Violence as a Human Rights Issue," Human Rights Quarterly 15, no. 1 (February 1993). pp. 36-62; Celina Romany, "State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in International Human Rights Law," and Rhonda Copelon, "Intimate Terror: Understanding Domestic Violence as Torture," in Rebecca Cook (ed.), Human Rights of Women: National and International Perspectives, (University of Pennsylvania Press, Philadelphia: 1994); Americas Watch (now Human Rights Watch/Americas) and Women's Rights Project, Criminal Injustice: Violence Against Women in Brazil (New York: Human Rights Watch, 1991); and Human Rights Watch Women's Rights Project, "Neither Jobs Nor Justice: State Discrimination Against Women in Russia," A Human Rights Watch Short Report, vol. 7, no.5 (March 1995).

63 Declaration on the Elimination of Violence Against Women, GAOR, 48th Sess., U.N. Document A/Res/48/104/1994, February 23, 1994. A U.N. declaration is not a treaty, which states may ratify and be bound by, but is a non-binding resolution which sets out a common international standard that states should follow. See Appendix for the full text of the Declaration on the Elimination of Violence Against Women.

64 The Declaration defines violence against women as "any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life." This definition was stated "to encompass, but not be limited to":

(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;

(b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;

(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.

65 Report of the Human Rights Committee, 37 U.N. GAOR Supp. (no. 40), Annex V, general comment 7(16), para.1 (1982) U.N. Document A/37/40(1982).

66 Convention on the Elimination of all forms of Discrimination Against Women, adopted and opened for signature, ratification and accession by U.N. General Assembly Resolution 34/180 of December 18, 1979; entry into force September 3, 1981; article 1.

67 Ibid., article 2.

68 In January 1993, State President F.W. de Klerk signed CEDAW, together with other U.N. conventions relating to women's rights. In 1995, a parliamentary committee approved its ratification in principle. The other treaties signed were the Convention on the Political Rights of Women (opened for signature and ratification by General Assembly Resolution 640 (VII) of 20 December 1952); the Convention on the Nationality of Married Women (opened for signature and ratification by General Assembly Resolution 1040 (XI) of 29 January 1957); the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage (opened for signature and ratification by General Assembly Resolution 1763A (XVII) of 7 November 1962); and the Convention on the Rights of the Child (opened for signature and ratification by General Assembly Resolution 44/25 of 20 November 1989). The Convention on the Rights of the Child was ratified by South Africa on June 16, 1995, a new national holiday designated Youth Day in commemoration of the1976 Soweto uprising.

69 Committee on the Elimination of All Forms of Violence Against Women, "Violence Against Women," General Recommendation No.19 (eleventh session, 1992), U.N. Document CEDAW/C/1992/L.1/Add.15.

70 Ibid.

71 Ibid.

72 Preliminary Report Submitted by the Special Rapporteur on Violence Against Women, its causes and consequences, U.N. Document E/CN.4/1995/42, November 22, 1994, p.18.

73 Ibid, p.16.

74 Rape Crisis, 1992 as quoted in Desirée Hansson and Beatie Hofmeyr, Women's Rights: Towards a Non-Sexist South Africa (Johannesburg: Centre for Applied Legal Studies, Developing Justice Series No. 7, undated), p.20.

75 "One in Four Women is Abused," Citizen, June 21, 1994.

76 Advice Desk for Abused Women mission statement, (undated), p.4.

77 "Women Fight for Rights," N.E. Tribune, July 13, 1993.

78 The research, carried out between January and April 1994 for the purposes of a masters thesis, compared fifty-nine women who had come to a clinic in the Mofolo section of Soweto for attention to injuries resulting from battery, with a control group of 149 women who had attended the clinic for any reason (including cases where the woman herself was not injured but was, for example, accompanying a child). Amongst the battered women, 40 percent had been battered for the first time; the remaining 60 percent were equally split between those who stated that they were regularly battered, and those who said it happened occasionally. Interview, Dr. Neil Martinson, Pretoria, September 12, 1995.

79 "43% of Women Claim Marital Rape, Assault," The Citizen, August 18, 1994.

80 Women's National Coalition Interim Research Report: Campaign for Effective Equality, (Johannesburg: WNC, 1994), p.101. The WNC was a coalition of women's groups that came together to formulate women's demands for the new South African constitution.

81 The surveys recorded data on random samples of patients with fatal and non-fatal injuries treated at state hospitals only in the rural areas, and at state and private hospitals in the metropolitan area. The data recorded all unintentional trauma occurring in or around the home, not necessarily as a result of assault and not necessarily between sexual partners. Fights between men occurring in the home, for example, would therefore also be included. The National Trauma Research Programme of the South African Medical Research Council, Trauma Review, vol.2, no.3, December 1994.

82 This survey recorded both the location of the violence and the relationship between the parties. The total number of assault patients was 312, of whom 106 had been assaulted in their own homes. Ibid.

83 Catherine Campbell, "Learning to Kill? Masculinity, the Family and Violence in Natal," Journal of Southern African Studies, vol.18, no.3, September 1992.

84 Daniel Nina and Stavros Stavrou, "Violence in the Home," Sash, January 1994, p. 27.

85 Anshu Padayachee, "The Prevention and Treatment of Abused Women in South Africa: A Game of Trivial Pursuit," Advice Desk for Abused Women (undated), p.2.

86 Women's National Coalition, Interim Research Report: Campaign for Effective Equality (Johannesburg: WNC, 1994), p.63.

87 See Joanne Fedler, "Lawyering Domestic Violence Through the Prevention of Family Violence Act 1993 - An Evaluation After a Year in Operation," South African Law Journal, vol.112, Part II, May 1995, p.234.

88 Mmatshilo Motsei, Detection of Woman Battering in Health Care Settings: The Case of Alexandra Health Clinic, Women's Health Project, paper no. 30, January 1993, p.5.

89 Final Report: Committee of Enquiry into Sexual Harassment (Cape Town: University of Cape Town, 1991).

90 However, the Cape Town studies cited above indicated that alcohol played an important part in violence occurring in the home, with roughly two thirds of the urban trauma cases and 76 percent of the rural cases being alcohol related. In the urban areas, 45 percent of patients treated for injuries incurred in home violence were unskilled or semi-skilled workers, and 40 percent not working (including housewives and pensioners); in the rural areas, nearly 60 percent were unskilled or semi-skilled workers and 19 percent not working (excluding housewives and pensioners). Again, note that these figures include all violence in the home, not necessarily between spouses or partners. Trauma Review December 1994.

91 Motsei, Detection of Woman Battering, p.14.

92 Ibid., p.2.

93 People Opposing Women Abuse, "Woman Shot": A Pilot Study Exploring Intimate Femicide in the Johannesburg Magisterial District of Gauteng, South Africa (Johannesburg: 1995). Interestingly, in thirteen of the twenty-four cases in which the occupation of the perpetrator was identified by the newspaper report, he was a policeman, and in another two cases a security guard. In sixteen of the forty-five homicides the perpetrator also killed himself and in ten of these sixteen cases attempted or succeeded in killing other members of the family. Other studies have examined the phenomenon of family killings, which were previously infrequent in South Africa but became more common during the 1980s. Between 1986 and 1988, 223 family murders were reported, during which time there was approximately one family killing per month. A disproportionate number of these killings affected white families from the Afrikaner community: of 126 reported family killingsbetween 1983 and June 1988, only two involved black families and 90 percent involved Afrikaans-speaking families. (These statistics do not distinguish between the murder of a spouse or child and the killing of the whole family.) In recent years, however, there has been an increase in reported family killings among the black population. V. Vall, "Family Murders in South Africa," Psychology Honors paper, University of Witwatersrand, unpublished (1988); The Star, November 18 and November 22, 1988 as quoted in Graeme Simpson, "Jack-Asses and Jackrollers: Rediscovering Gender in Understanding Violence," (Johannesburg: Centre for the Study of Violence and Reconciliation, 1992), p.7; Russell Molefe, "Why family killings are on the rise," The Sowetan, July 31, 1995.

94 The figures are as follows:

South African Institute of Race Relations, Race Relations Survey 1993/94, p. 299.

95 Reported murders - more likely to reflect the actual numbers of murders than the figures for rape - have also increased dramatically over the last decade, tending to confirm the escalating numbers for rape.

96 "Huge Jump in Number of Reported Rapes," Sunday Times, May 8, 1994 and "27,000 Women Raped in SA Last Year," The Citizen, September 6, 1994. The racial breakdown was given as follows: "black on black" violence (25,042) 92.5 percent; "white on white" violence (1,024) 3.7 percent; "white on black" violence (271) 1 percent; "black on white" violence (179) 0.66 percent; coloured on Asian (126) 0.5 percent; and black on coloured/Asian violence (57) 0.2 percent.

97 "Five year analysis of rape trends in the RSA," table supplied by the Human Sciences Research Council, 1995. The rate is expressed with reference to the areas policed by the former South African police; that is, excluding the ten homeland areas. In the United States, the reported rate of rape was forty-two per hundred thousand in 1990: Institute of Race Relations, Race Relations Survey 1993/94, p.297.

98 Women's National Coalition, Interim Research Report: Campaign for Effective Equality (Johannesburg: WNC, 1994), p.102.

99 "Police Report Huge Increase in Child Abuse," Sunday Times, January 29, 1995; Anso Thom "Jo'burg child abuse unit under mound of dockets," The Star August 2, 1995. Part of the startling increase in the figures is probably due to increased reporting following the establishment of specialized "child protection units" in the police.

100 "Huge Jump in Number of Reported Rapes," Sunday Times, May 8, 1994.

101 J.M. Lötter, "Criminal Victimization: Some results from survey research," in W.J. Schurink et al, Victimization: Nature and Trends (Pretoria: Human Sciences Research Council, 1992); and South African Institute of Race Relations, Race Relations Survey 1993/94, p.296. Academic surveys are also likely to underestimate the figures.

102 It is important to note that this distinction applies to reported rapes. Rape that is most likely to be reported is rape by a stranger, accompanied with obvious physical violence: rapes of this type are most likely to affect those who are more vulnerable; that is, women without private cars, with houses without proper security, and living in more violent areas. Rape within marriage or between parties who are known to each other is far less likely to be reported. It is therefore likely that figures for marital rape, incest rape, date rape, etc. are significantly under-reported.

103 "New Refuge for Rape Victims," The Star, January 17, 1995.

104 South African Institute of Race Relations, Race Relations Survey 1993/94, p.297. Alexandra is a smaller township with an estimated population of roughly a quarter of a million situated in Johannesburg's northern suburbs; Soweto's population is estimated at anywhere from three to four million. In the month of December 1994, the Baragwanath medico-legal clinic in Soweto dealt with 200 cases of rape. "Silence Condones Rape," New Nation, January 20, 1995.

105 Ibid., p.296.

106 In 60 percent of cases, the injuries had occurred at home, and 27 percent were inflicted on the streets. Letter dated August 25, 1995 to Human Rights Watch from J.W. van der Spuy, head of the National Trauma Research Programme of the South African Medical Research Council. The figures were derived from the Cape Town metropolitan area study cited above and described in Trauma Review, December 1994.

107 Lorna J. Martin, Rape in Johannesburg (Johannesburg: Centre for the Study of Violence and Reconciliation, 1993), p.5. This figure may reflect a higher probability of serious injury in the case of rape of young girls.

108 "Huge Jump in Number of Reported Rapes," Sunday Times, May 8, 1994.

109 "Convictions for rape or attempted rape for the 12-month period July 1, 1993 to June 30, 1994," table supplied by the Human Sciences Research Council, 1995.

110 "The distribution of rape cases in the RSA per police region" and "Difference in the rape rate in metropolitan and rural areas," tables supplied by the Human Sciences Research Council, 1995. The reported figures related to the old police regions, which have now been reorganized to match the nine provinces of the new government.

111 "Black township youths have been historically marginalized by apartheid, leaving them as alienated outcasts within their own wider society. Black township youths have historically been excluded from the key resources of power and authority in the society. Particularly for young post-adolescent males, this leaves them frustrated, emasculated and generally disempowered ... it is a generation of young people who have been actively marginalized and brutalized by their society. It is no surprise that they present as the primary perpetrators as well as victims of violence, both criminal and political." S. Mokwena, "Marginalisation, Youth and Violence," as quoted in Simpson, "Jack-Asses and Jackrollers...," pp.9-10.

112 The term was coined to refer to the forceful abduction of women in the township by a gang called the "Jackrollers" which operated between 1987 and 1988 in the Diepkloof area. The original Jackroller gang was made up of a network of fewer than ten youths. The gang was led by Jeffrey Brown who within months of his arrival in Soweto, earned the status of the most feared man in the township. The most notable practices of the Jackrollers were rape and abduction, car theft and bank robbery. But as the abduction and rape of women became more widespread in the townships, anyone who did it could be called a jackroller and jackroll has become a commonly used verb in township vocabulary. Steve Mokwena, "The Era of the Jackrollers: Contextualizing the Rise of Youth Gangs in Soweto" (Johannesburg: Centre for the Study of Violence and Reconciliation, 1991), p.18.

113 Diana Russell, "Rape and Child Sexual Abuse in Soweto: An Interview with Community Leader Mary Mabaso" (Cape Town: Centre for African Studies, University of Cape Town, March 26, 1991), p.7.

114 Interview with Bronwen Pithy, Rape Crisis, Capetown, February 8, 1995.

115 N. Mathiane, Beyond the Headlines, Truths of Life in Soweto, Southern publishers, 1990, pp.148-153 as quoted in Mokwena, "The Era of the Jackrollers," p.21.

116 Diana Russell, "Rape and Child Sexual Abuse in Soweto: An Interview with Community Leader Mary Mabaso" (Cape Town: Centre for African Studies, University of Cape Town, March 26, 1991), p.6.

117 "Rape in SA Every 83 Seconds: Report," The Citizen, June 9, 1993.

118 Russell, "Rape and Child Sexual Abuse in Soweto," p.6.

119 Interview with Lindsey Fredman, University of Western Cape, Cape Town, February 11, 1995; see also Diana Russell, "The Story of Lulu Diba," Agenda, No.16, 1993.

120 Interview, Alexandra, February 17, 1995.

121 Equality Now, "South Africa: Rape and Violence Against Women at the Durban Train Station," Women's Action 6.1, May 1994.

122 Interview, Durban train station, Durban, February 2, 1995.

123 Interviews, September 8, 1995.

124 Lorna J. Martin, Rape in Johannesburg (Johannesburg: Centre for the Study of Violence and Reconciliation, 1993), p.4.

125 This figure is obtained from the records of 556 cases in the clinic and does not take into account reported cases which require immediate hospital attention. Ibid.

126 Information supplied by the AIDS Research Unit of the South African Institute for Medical Research.

127 Ibid.

128 Abortion is regulated by the Abortion and Sterilization Act, (Act No.2 of 1975), which outlaws termination of pregnancy except in cases of "a serious threat" to the woman's physical health or "a danger of permanent damage" to her mental health; when there is a serious risk that the child will be born with "a physical or mental defect of such a nature that he [sic] will be irreparably seriously handicapped;" when the pregnancy "is shown to be the result of rape or incest;" or when the woman is, "due to a permanent mental handicap or defect ... unable to comprehend the consequential implications or bear the parental responsibility for" the child. To procure a legal abortion in a rape case, a woman must obtain a written application for an abortion from a registered medical practitioner, supported in writing by two other doctors. Application is then made to a magistrate to authorize the abortion, and the applicant must give a sworn statement that the pregnancy is the result of rape or incest. If the rape has not been reported to the police, the magistrate must establish if the woman had a "good and acceptable" reason for not having reported it. The application will be denied if the magistrate determines that the alleged offence did not occur or if it did not constitute rape in the legal sense, or if the magistrate does not accept her reason for not having reported it. Finally, the medical practitioner who is in charge of the facility where the abortion will be carried out must also be satisfied that the requirements of the Abortion Act have been fulfilled. Approximately 36,000 operations are performed for the removal of residues of pregnancy are performed each year, the majority believed to be as a result of illegal abortions; estimates of the number of illegal abortions carried out annually rise as high as 300,000. The content of new legislation to govern abortion is currently under debate in the National Assembly. Desirée Hansson and Diana Russell, "Made to Fail: the mythical option of legal abortion for survivors of rape and incest," South African Journal on Human Rights, vol.9, 1993, pp.500-524; Abortion Rights Action Group Submission to the Parliamentary Select Committee on Abortion (Cape Town: 1994).

129 Sharon Lewis, Dealing with Rape (Johannesburg: SACHED Books, 1994).

130 Interview, Durban, February 3, 1995.

131 Women from all over the world and from all walks of life are at risk from violence in the home, usually at the hands of their husband or partner. The United Nations, The World's Women 1970-1990: Trends and Statistics (New York: United Nations, 1991), p. 19. See also Human Rights Watch, The Human Rights Watch Global Report on Women's Human Rights (New York: August 1995), p.341.

132 Some countries have enacted criminal legal provisions which apply specifically to violence within the family (for example, Spain, Portugal and Poland), or to particular forms of domestic violence (for example, violence relating to dowry collection, in India and Bangladesh). U.N. Centre for Social Development and Humanitarian Affairs, Strategies for Confronting Domestic Violence: A Resource Manual (New York: United Nations, 1993), p.12-13.

133 Possible charges include arson, assault, assault with intent to do grievous bodily harm, threats to do bodily harm, obstructing justice, cruelty to children, incest, kidnaping, murder, culpable homicide, rape, forced prostitution, unlawful entry on to property, malicious damage to property, theft, robbery, unlawful possession of a firearm, sodomy, extortion, blackmail and sexual assault. Joanne Fedler, "Lawyering Domestic Violence," p.2, pre-publication copy.

134 A. Crump, "Wife Battering," South African Journal of Criminal Law and Criminology, 1987, p. 231.

135 Kathryn Ross, "Battered women: An invisible issue," in Women Rape and Violence in South Africa: Two Preliminary Studies (Cape Town: Community Law Centre, 1993).

136 Interviews, Schoemansdal Police Station, KaNgwane, September 8, 1995.

137 Minutes of a meeting held at Cape Town Magistrates' Court, February 10, 1995.

138 Quoted in Teresa Angless, "Violence Against Women: Battered Women Seeking Solutions," Paper presented to the Criminological Association of South Africa International Conference, September 2-3, 1993.

139 In a number of United States jurisdictions, by contrast, automatic arrest guidelines have been issued to police in domestic violence cases; and while the woman has the choice as to whether charges will be laid, she has no right to ask for them to be withdrawn.

140 However, a large number of all assault charges are withdrawn: of 89,740 assault cases reported to the police between January and July 1994, only 23,534, or 26 percent, went to court. It is not known what percentage of these cases arose from domestic settings. Lt.-Col. Marietjie Louw, paper presented to the Conference on Domestic Violence, Pretoria: September 1994.

141 Interview, Lance-Sergeant Amanda Botha, Sunnyside Police Station, August 22, 1995.

142 Interview with prosecutor (name withheld on request), Durban, February 3, 1995.

143 Ibid.

144 Interview, Tonga Magistrates' Court, KaNgwane, September 8, 1995.

145 According to section 195(1) of the Criminal Procedure Act (Act No. 51 of 1977), a wife or husband is both competent and compellable as a witness against her or his spouse in criminal proceedings, where the spouse is charged with an offence against the witness or a child of the marriage (in general, a spouse is only competent but not compellable to give evidence against her or his partner).

146 Joanne Fedler, "Lawyering Domestic Violence," p.236.

147 The courts in South Africa have, however, recognized the psychological as well as physical suffering of women in abusive relationships, by accepting self-defense as a defense to a murder charge when a woman has killed her partner after a history of persistent battery, even though her life is in no immediate danger. The leading case is S. v. Lavalle (1990) 1 SCR 852.

148 Section 384, Criminal Procedure Act (Act No. 56 of 1955).

149 The Advice Desk for Abused Women found that of ninety-three peace orders it surveyed that were obtained between January and June 1993, less than one quarter of the women found that the order acted as a deterrent to further abuse. Seventy-one women reported that the violence increased after they obtained the order and that threats of divorceand deprivation of financial support were made to them. These threats, they claimed, prevented them from making reports to the police regarding breaches of the peace order. They were further deterred because the courts could not provide them with any protection other than a warning to the abuser. Anshu Padayachee, "The Prevention and Treatment of Abused Women in South Africa: A Game of Trivial Pursuit," The Advice Desk for Abused Women (undated), p.11.

150 Ibid.

151 The Prevention of Family Violence Act was promulgated at a time when it was politically expedient for the National Party government to be seen to be doing something for women in order to attract the female vote in the April 1994 election. Its enactment was not accompanied by government funding for support structures nor by programmes to address gender bias in the police and court system. Joanne Fedler, "Lawyering Domestic Violence," p.234.

152 Sheriffs' offices are privately run businesses regulated by the state and given jurisdiction to serve court papers over a particular area.

153 The breakdown for 4,869 interdict applications, between December 1, 1993 and January 1995, is as follows: (1) Bellville: 699 granted, fifteen denied; (2) Cape Town: 452 granted, twenty denied; (3) Goodwood: 630 granted, eight denied; (4) Kuilsriver: 322 granted, two denied; (5) Mitchell's Plain: 1,568 granted, thirty denied; (6) Simonstown: eighty-seven granted, none denied (only until July 1994); (7) Wynberg: 1,035 granted, one denied (only until mid-December 1994). Magistrate's Liaison Report on the Implementation of the Prevention of Family Violence Act, unpublished report, June 1994 for figures between December 1, 1993 to July 1994 and interview with paralegal, National Institute for Crime Prevention and Rehabilitation of Offenders (NICRO), Cape Town, February 8, 1995 for figures between August 1, 1994 to January 15, 1995.

154 "Statistics on Family Violence," Law Race and Gender Project, CIV-1.

155 Interview, Johannesburg, February 17, 1995.

156 Interview, Cape Town, February 8, 1995.

157 Interview, Johannesburg, February 15, 1995.

158 Telephone survey forms of clients, NICRO, Cape Town, February 8, 1995.

159 Interview, Clerk of the Court, Pretoria Central Magistrates' Court, August 16, 1995.

160 According to the 1991 population census, a total of 957,092 persons were employed in private households, or just over 10 percent of a total workforce of 9,360,314. Eighty-nine percent of domestic workers are women (compared to 36 percent of the general workforce). South African Institute of Race Relations, Race Relations Survey 1993/94, p.457.

161 Joanne Fedler, "Lawyering Domestic Violence," p.239.

162 Interview with Sharon Pratt, Family and Marriage Services of South Africa (FAMSA), Cape Town, February 9, 1995.

163 Brenda Ramsden, "The Prevention of the Family Violence Act and Beyond: Legal Strategies to Deal Comprehensively with Relationship Violence against Women in South Africa," unpublished, May 1994, p.15.

164 Interview, Clerk of the Court, Pretoria, August 16, 1995.

165 Interview, Johannesburg, February 15, 1995.

166 The cost depends on the distance from the court to the location where the man is served with the papers. Sheriff's offices charge by the kilometer. There is a different rate for magistrates' court or Supreme Court cases. However, costs vary enormously and can be up to several hundred rands.

167 Interview, Durban, January 31, 1995.

168 Interview, Zubeda Dangor, NISAA, Institute for Women's Development, Johannesburg, February 15, 1995.

169 Interview, Joanne Fedler, People Opposing Women Abuse (POWA), Johannesburg, February 14, 1995.

170 See "The Prevention of Family Violence Act: Innovation or Violation?," De Rebus, March 1994, p.212 and "Family Violence Act causes `Nightmarish' Problems," Fiona Stewart, Letter to the Editor, De Rebus, October 1994, p.721.

171 Interview with Jane Keen, National Institute for Crime Prevention and Rehabilitation of Offenders (NICRO), Cape Town, February 8, 1995.

172 Interview with Joanne Fedler, People Opposing Women Abuse (POWA), Johannesburg, February 14, 1995.

173 Interview with Rashida Manjoo, Legal Adviser, Advice Desk for Abused Women, February 1, 1995.

174 The former TBVC states, nominally independent from Pretoria, had full legislative competence, and therefore neither the Prevention of Family Violence Act nor any other South African legislation passed after "independence" was of any effect within their borders. The former "self-governing territories" however, had legislative competence only in some areas (listed in a Schedule to the National States Constitution Act No.21 of 1971), and where they did not have legislative competence, South African law applied. It is arguable whether legislation similar to the Prevention of Family Violence Act would or would not have been within the legislative competence of the self-governing territories, and therefore the status of the Prevention of Family Violence Act within the former self-governing territories is ambiguous.

175 Telephone interview, Department of Justice, September 20, 1995.

176 Interview with Debbie Brent, shelter administrator, People Opposing Woman Abuse (POWA), February 17, 1995.

177 Interview with Maj. J. Koobair, station commander, Sydenham police station, Durban, February 2, 1995.

178 Interview, police officer Nguchane, Alexandra police station, Alexandra, February 17, 1995.

179 Ibid.

180 Police stations at the following locations were visited: Chatsworth, Hammarsdale, KwaDabeka (Clermont), Kwamashu, Lamontville, Msinsini, Nagina, Pinetown, Pungashe, Umlazi, Umsinsini, Umzumbe, Vela and one unnamed.

181 Paralegal report of interview with Captain Martin Marais, station commander, KwaDabeka Police Station, August 5, 1994.

182 Interview, Durban, February 3, 1995.

183 Interview, Durban, February 3, 1995.

184 Interview, Durban, January 31, 1995.

185 Interview with Pumla Ngewu, counselor, Ilitha LaBantu, Guguletu, February 8, 1995.

186 Interview Anchu Padayachee, Advice Desk for Abused Women, February 1, 1995.

187 Ibid.

188 Interview, Durban, January 31, 1995.

189 Interview, Durban, February 3, 1995.

190 Interview with Debbie Brent, shelter administrator, People Opposing Woman Abuse (POWA), February 17, 1995.

191 Interview with Denise Washkansky, counselor, Rape Crisis, Cape Town, February 10, 1995.

192 Paralegal reports submitted to Lawyers for Human Rights and the Advice Desk for Abused Women, 1994.

193 Paralegal report of interview with Sergeant Gwamanda, Hammarsdale station commander, KwaDabeka Police Station, July 26, 1994.

194 Paralegal report of interview with station commander, Umlazi police station, July 27, 1994.

195 Interview with Counselor, Advice Desk for Abused Women, Durban, February 1, 1995. Commendably, the station commander Col. P. Naidoo expressed concern upon receiving a complaint from the Advice Desk and asked for the woman concerned to meet with him directly in the future.

196 Interview, Louise Du Plessis, Attorney, Pretoria, August 16, 1995.

197 Interview, Zubeda Dangor, NISAA, Institute for Women's Development, Johannesburg, February 15, 1995.

198 Interviews, paralegal workshop organized by the National Institute for Public Interest Law and Research, Pretoria, August 11, 1995.

199 Interview, Alexandra Community Center, Alexandra, February 17, 1995.

200 Interview, Capetown, February 8, 1995.

201 Interview with Debbie Brent, shelter administrator, People Opposing Woman Abuse (POWA), February 17, 1995.

202 Ibid.

203 Interview, Louise Du Plessis, Attorney, Pretoria, October 6, 1995.

204 Letter from Susan Garvey, shelter staff-person to Station Commander, Sydenham Police Station, Domerton, June 20, 1994.

205 Paralegal report of interview with Captain Martin Marais, station commander, KwaDabeka Police Station, August 5, 1994.

206 Paralegal report of interview with Warrant Officer C.J. van Vuuren, Umsinsini police station, July 11, 1994.

207 Interview with Maj. J. Koobair, station commander, Sydenham police station, Durban, February 2, 1995.

208 Interview, Rashida Manjoo, Legal Advisor, Advice Desk for Abused Women, Durban, January 31, 1995.

209 Ibid., August 27, 1995.

210 Interview, clerk of the court, Pretoria, August 16, 1995.

211 Interviews with counselors, the Advice Desk for Abused Women, Durban, January 31, 1995.

212 Letter from Yasmin Bacus, Coordinator, Advice Desk for Abused Women to the deputy attorney-general, Durban Magistrates Court, January 11, 1995.

213 Paralegal Report of Interview with court clerk Mr. Gwala, Umzumbe magistrates court, July 27, 1994.

214 Interview with prosecutor (name withheld on request), Durban, February 3, 1995.

215 Group interview with officials from the Advice Desk for Abused Women, Durban, February 1, 1995.

216 Minutes of a meeting held at Cape Town Magistrates' Court, February 10, 1995.

217 Teresa Angless, "Violence Against Women: Battered Women Seeking Solutions," Paper presented to the Criminological Association of South Africa International Conference, September 2-3, 1993.

218 Interview, Durban, February 1, 1995.

219 RDP Office, Beijing Conference Report, p.46.

220 Anshu Padayachee, "Inter-Agency Liaison: A Problem in the Treatment and Prevention of Wife Abuse," Acta Criminologica, vol. 5, no. 1, 1992, pp.66-67.

221 Joanne Fedler, "Lawyering Domestic Violence," p.33, pre-publication draft.

222 Interview, Alexandra, February 17, 1995.

223 Kathryn Ross, "An examination of South African rape law," in Women, Rape and Violence in South Africa (Cape Town: Community Law Centre, 1993), p.8.

224 Ibid., pp.11-12. Rape is the only crime in which the behavior of the victim is considered relevant to the guilt of the perpetrator.

225 Sharon Stanton and Margot Lochrenberg, Justice for Sexual Assault Survivors? (Cape Town: University of Cape Town Institute of Criminology, Rape Crisis and Lawyers for Human Rights, October 1994), p.1.

226 "Convictions for rape or attempted rape for the 12-month period 1 July 1993 to 30 June 1994," table supplied by the Human Sciences Research Council, 1995.

227 Interview with Riana Taylor, Criminologist, Advice Desk for Abused Women, Durban, January 31, 1995.

228 Anonymous rape survivor, Weekend Argus (Cape Town), October 3, 1992, as quoted in Desirée Hansson "The first rape court and the legal recognition of Rape Trauma Syndrome," Agenda, No.16, 1993.

229 Lloyd Vogelman and Gillian Eagle, "Overcoming Endemic Violence," Social Justice, vol. 18, nos 1-2 at 212.

230 "Silence Condones Rape," New Nation, January 20, 1995, p.5.

231 Interview, Lenasia, Johannesburg, February 15, 1995.

232 Interview, Cape Town, February 8, 1995.

233 Interview with Riana Taylor, Criminologist, Advice Desk for Abused Women, Durban, January 31, 1995.

234 Ibid.

235 Interview with Lulu Ngcephe, social worker, People Opposing Women Abuse (POWA), Johannesburg, February 17, 1995.

236 Interview, Louise Du Plessis, Attorney, Pretoria, August 16, 1995.

237 Interview with Sharon Pratt, Family and Marriage Services of South Africa (FAMSA), Cape Town, February 9, 1995.

238 Interview with Maj. J. Koobair, Sydenham police station, Durban, February 2, 1995.

239 Interview with Linda McClean, Human Rights Committee, Durban, February 3, 1995; Human Rights Committee Natal Overview, October 1994.

240 Interview with Riana Taylor, Criminologist, Advice Desk for Abused Women, Durban, January 31, 1995.

241 Ibid.

242 Interview, Lisa Vetten, People Opposing Women Abuse, Johannesburg, February 15, 1995.

243 Many of these efforts have been initiated by Captain Sharon Schutte, of Murder and Robbery Headquarters, by whom this information was supplied. Interview, Pretoria, August 8, 1995.

244 District surgeons are also responsible for autopsies, drunk driving tests, carrying out (legal) abortions for rape victims and medical treatment of prisoners, state disability pensioners, orphans, and residents of old age homes and juvenile institutions. Every part of the country falls under the jurisdiction of a district surgeon, although they may be at some distance in rural areas. In KaNgwane, for example, the district surgeon is based at Komatipoort, on the Mozambique border, and women are therefore usually referred by police and examined by doctors at a local mission hospital.

245 "Some Recommendations on Legal Reform Relevant to the Redress of Violence Against South African Women," submitted by a group of Cape Town organizations to the South African government's sub-council on the status of women, 1994, p.14.

246 As noted above, abortion is currently illegal in South Africa, except in certain limited circumstances, which include where pregnancy is the result of rape or incest.

247 Interview with Denise Washkansky, counselor, Rape Crisis, Cape Town, February 10, 1995..

248 Lorna J. Martin, Rape in Johannesburg, (Johannesburg: Centre for the Study of Violence and Reconciliation, 1993), p.7.

249 Interview, Johannesburg, February 17, 1995.

250 Interview with Riana Taylor, Criminologist, Advice Desk for Abused Women, Durban, January 31, 1995.

251 Interview, Louise Du Plessis, Attorney, Pretoria, August 16, 1995.

252 Ibid.

253 Attorney-General Guidelines: Victims of Rape and Sexual Offences Against Children, General Minute No.3 of 1995 to all prosecutors within the jurisdiction of the Attorney-General, Transvaal. Each of the old administrative provinces of South Africa, and the Witwatersrand (as well as the former TVBC states), has an attorney-general who is responsible for the conduct of prosecutions within that province. There is no national attorney-general. Section 310A of the Criminal Procedure Act (Act No.51 of 1977) provides for appeal against a sentence by an attorney-general, provided that a judge in chambers has granted an application for leave to appeal. The court system is currently being examined with the aim of reorganization.

254 Cautionary rules are used by magistrates and judges in a range of cases where witness credibility could be a problem. The rule is currently applied to the following types of witnesses: single witnesses; accomplices; children; spies, police traps and informers; women in sexual offenses trials; claimants in estates of deceased persons; prostitutes; and inquiry agents. The list is a result of accumulated precedent, rather than the application of consistentor independent criteria about credibility.

255 Hoffman and Zeffert, The South African Law of Evidence (1994 reprint), as quoted in People Opposing Women Abuse, "Calling for Change: A Discussion on Some Aspects of the Laws and Procedures Surrounding Sexual Violence in South Africa." Johannesburg Rape Hearings, December 1994.

0 "Women and Sexual Offenses," South African Law Commission Report (April 1985), para. 3.55 as quoted in Kathryn Ross, "An examination of South African rape law," in Women, Rape and Violence in South Africa (Cape Town: Community Law Centre, 1993), p.13.

1 The reports are cited in People Opposing Women Abuse, "Calling for Change...,"

2 People Opposing Women Abuse, "Calling for Change: A Discussion on Some Aspects of the Laws and Procedures Surrounding Sexual Violence in South Africa." Johannesburg Rape Hearings, December 1994, p.8.

3 In Namibia, the use of the cautionary rule in sexual offenses cases was found to be unconstitutional on the grounds of discrimination of the basis of sex since the rule "discriminates against women complainants and has no rational basis for existence." S v. D and Another, October 1991, Namibia High Court, Justices Strydom and Frank.

4 Not surprisingly, the recent case law follows decades of precedent. In a 1949 case, the defendant was acquitted on the grounds that "these cases of sexual assault require special treatment, that charges of this kind are generally difficult to disprove, and that various considerations may lead to their being falsely laid ... Had the charge against the appellant been, for instance, one of theft, requiring no more than the ordinary high, but not exceptional standard of careful scrutiny ..., the verdict of guilty must have stood." R v. W 1949 (3) SA 722 (A) at 780 and 783. Another judgment noted, "in the case of all females alleging sexual assaults the need for similar caution, in the absence of corroboration, flows from the fact that such charges are easily laid and difficult to disprove, and a multiplicity of motives may exist for their being falsely laid. This has been recognized since time immemorial, and a classic example of such a false charge can be found in the Biblical story of Potiphar's wife and Joseph. Apart from the danger of maliciously false charges, it is also recognized that, even with adults, one may encounter cases of unfounded allegations of sexual assault which owe their origin to flights of fancy." R v. J 1966 (1) SA 88 (SR) at 92A-C.

5 S v. N 1987 (3) SA 450 Justice Corbett (Viljoen and Nestadt concurring) as quoted in People Opposing Women Abuse, "Calling for Change...," p.9.

6 S v. Balhuber, 1987 (1) PH H22(A), Justice Botha, Ibid., p.10.

7 S v. Weitz, 1993 Magistrate Campbell, Ibid.

8 "Victim Describes Time of Torment," Weekly Mail and Guardian, December 9-14, 1994.

9 "Appeal Court Candidate in Rape Furore," Weekly Mail and Guardian, December 9-14, 1994.

10 "Olivier Gets Promoted," Sunday Times, December 11, 1994.

11 S v. Camroodien, 1994, Magistrate Marais as quoted in People Opposing Women Abuse, "Calling for Change...," p.10.

12 "The Right to Say No to Sex," Sunday Times, July 3, 1994 and "Radio 702 Journalist Acquitted of Rape," The Star, June 29, 1994.

13 Telephone interview, Ilze Olckers, Lawyers for Human Rights, September 18, 1995.

14 Section 5 of the act reads: "Notwithstanding anything to the contrary contained in any law or in the common law, a husband may be convicted for rape of his wife."

15 The senior prosecutor at the Pretoria Regional Magistrates Court reported a case in which a man was convicted of raping his estranged wife, after she had obtained an interdict against him under the Prevention of Family Violence Act. Interview, September 19, 1995. The office of the attorney-general for the Transvaal conducted a survey within its jurisdiction at the beginning of 1995 and found that there had been only two cases of marital rape reported, and one prosecution since the introduction of the legislation. In that case, the accused had been acquitted. Interview, attorney-general's office, Pretoria, September 6, 1995.

16 "Educate Magistrates About Rape in Marriage, Please," Letter to the Editor from Marie-Therese Naidoo, Women's Charter Alliance, Durban, The Daily News, December 7, 1994, p.13.

17 "Silence Condones Rape," New Nation, January 20, 1995, p.5. Sentencing for other crimes is equally arbitrary: no sentencing guidelines are issued to magistrates and judges by the Department of Justice, and although each part of the court system is bound by decisions of higher courts, these decisions do not form a consistent standard.

18 The study recorded sentences ranging from corporal punishment (now abolished in South Africa) to ten years' imprisonment. The mean sentence was 4.5 years; in ten cases the sentence was suspended. Although 75 percent of those convicted received a sentence of imprisonment, only 28 percent of these received an effective term of more than four years. Steven Collings, "Rape Sentences - An Empirical Analysis," South African Journal of Criminal Law and Criminology, vol.9, 1985.

19 "A-G Slams Prisons' Decision, Sowetan, January 27, 1995.

20 See Desirée Hansson, "What is Rape Trauma Syndrome?," Institute of Criminology, University of Cape Town, occasional papers series 4-92, 1992 and Desirée Hansson, "A Shock to the System: The First Rape Court and the Legal Recognition of Rape Trauma Syndrome," Agenda, No.16, 1993.

21 Colin Bundy, "At War with the Future? Black South African Youth in the 1990s," in Stephen John Stedman, South Africa, The Political Economy of Transformation, SAIS African Studies Library (Baltimore: Reinner Publishers, 1994); Wilfried Schärf, "The Role of People's Courts in Transition," in Hugh Corder (ed.) Democracy and the Judiciary (Cape Town: Institute for a Democratic Alternative in South Africa, 1989); Daniel Nina and Stavros Stavrou, Popular Justice in a `New South Africa': From People's Courts to Community Courts in Alexandra (Johannesburg: Centre for Applied Legal Studies, 1992).

22 In June 1995, for example, it was reported that a man from the township of Vosloorus on the East Rand near Johannesburg had taken the law into his own hands and killed five well-known criminals: in three incidents in one week he had shot eight people, and in numerous other cases had shot people before handing them over to the police. Community members expressed strong support for his actions. Elias Maluleke, "Killer Vigilante's Bloody Crusade," City Press, June 11, 1995.

23 Steve Mokwena, "The Era of the Jackrollers...," p.27.

24 Interview with Mmatshilo Motsei, Agisanang Domestic Abuse Prevention and Training (ADAPT), Alexandra, February 14, 1995.

25 Interview with two comrades, Alexandra, February 17, 1995.

26 Interviews, Alexandra Community Center, February 17, 1995.

27 Interview, Alexandra, February 17, 1995.

28 Interview with two comrades, Alexandra, February 17, 1995.

29 Interview with Mmatshilo Motsei, Agisanang Domestic Abuse Prevention and Training (ADAPT), Alexandra, February 14, 1995.

30 Interview, police officer Nguchane, Alexandra, February 17, 1995.

31 In some cases, this is already happening. For example, in the township of Guguletu outside Cape Town, magistrates refer some minor cases to be dealt with in the community.

32 Interview with Riana Taylor, Criminologist, Advice Desk for Abused Women, January 31, 1995.

33 Interview with representative (name withheld on request), Gauteng Ministry of Safety and Security, Johannesburg, February 17, 1995.

34 Interview with lawyer (name withheld on request), Durban, February 2, 1995.

35 Interview with Ilze Olckers, Lawyers for Human Rights, Cape Town, February 10, 1995.

36 The Task Group was to identify problem areas in treatment of rape victims at the hands of police, hospital staff, district surgeons, prosecutors and judicial officers. It was asked to find ways to end the secondary victimization suffered by rape survivors. Since the inception of the Task Group, a number of reform initiatives have been devised by government agencies in the Western Cape. These have included the introduction of police rape specialists; new guidelines for the handling of rape cases; the opening of the Sexual Offenses Court at the Wynberg Regional Magistrates Court; and the selection of seven Regional Court prosecutors to deal with rape cases in other courts. The efforts of the Task Group have also contributed to the recognition of the Rape Trauma Syndrome (RTS) at the sentencing stage in the Cape Supreme Court, which is now binding on all courts in the Cape Provincial Division. Since December 1993, the Task Group has evolved into an open quarterly forum. Sharon Stanton and Margot Lochrenberg Justice for Sexual Assault Survivors? (Cape Town: University of Cape Town Institute of Criminology, Rape Crisis and Lawyers for Human Rights, October 1994), p.4.

37 Ibid., p.3.

38 Many of the women's organizations in the area believe that while the effort by the attorney-general's office was welcome, it lacked the necessary prior consultation and planning with all concerned agencies, governmental and non-governmental, which would have further strengthened the initiative.

39 Stanton and Lochrenberg, Justice for Sexual Assault Survivors?, p.13.

40 Site visit to the Wynberg Sexual Offenses Court, Cape Town, February 10, 1995.

41 Interview with Lynette Myburgh, prosecutor, Wynberg Court, Cape Town, February 10, 1995.

42 Ibid.

43 Interview with Elsabe Durr-Fitschen, Victims Support Services Coordinator, Wynberg Sexual Offenses Court, Cape Town, February 10, 1995.

44 Interview, attorney general's office, September 6, 1995; undated memorandum headed "Specialized Rape Courts" prepared by the office. As regards the throughput of cases, the Wynberg court averages less than one case finalized per day, while the Pretoria Regional Court averages approximately 2.5 cases a day.

45 Interview with staff member (name withheld by request), Hillbrow Reporting Center, Johannesburg, February 17, 1995.

46 Site visit to the Hillbrow medico-legal clinic, February 17, 1995, and interview with Lorna Martin, senior medical officer, district surgeon, Hillbrow medico-legal clinic, Johannesburg, February 17, 1995. District Surgeon Medico-Legal Clinic Protocol Book, compiled by Dr. Lorna Martin, October 1994 (2nd ed.).

47 "New Refuge for Rape Victims," Star, January 27, 1995.

48 "Centre Eases Rape Trauma," Sunday Times, January 8, 1995.

49 Interview, Lisa Vetten, September 20, 1995.

50 "Hot on the Trail of Rapists," Sunday Tribune, September 18, 1994.

51 Ibid.

52 "Sexual Offenses Centre Opens Today," Star, November 25, 1994.

1 Resolution 217 A (III).

2 See resolution 2200 A (XXI), annex.

3 Ibid.

4 Resolution 34/180, annex.

5 Resolution 39/46, annex.

6 Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace, Nairobi, 15-26 July 1985 (United Nations publication, Sales No. 3.85.IV.10), chap. I, sect. A.

7 Universal Declaration of Human Rights, article 3; and International Covenant on Civil and Political Rights, article 6.

8 International Covenant on Civil and Political Rights, article 26.

9 Universal Declaration of Human Rights, article 3; and International Covenant on Civil and Political Rights, article 9.

10 International Covenant on Civil and Political Rights, article 26.

11 Ibid.

12 International Covenant on Economic, Social and Cultural Rights, article 12.

13 Universal Declaration of Human Rights, article 23; and International Covenant on Economic, Social and Cultural Rights, articles 6 and 7.

14 Universal Declaration of Human Rights, article 5; International Covenant on Civil and Political Rights, article 7; and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.