Magistrates ‘don’t know the laws around rape’

Some shortlisted candidates for regional courts posts did not even know what the minimum prescribed sentence for rape was, advocacy group Judges Matter said.

In a country beset by gender-based violence, a worrying number of magistrates appear to lack basic knowledge of the laws around rape, during interviews for posts in the regional courts recently.

This is according to advocacy group Judges Matter, which sat in on the interviews.

Conducted by the Magistrates Commission in October and November, the interviews saw 88 shortlisted candidates – magistrates and lawyers – battle it out for 26 vacant posts around the country.

Judges Matter said afterwards “a significant number” of candidates did not even know what the minimum prescribed sentence for rape was.

“Given such recent events regarding gender-based violence and femicide, one would expect that the people sitting on the bench and administering justice would know the law and be able to apply it accordingly. However, this proved not to be the case,” it commented in a post on its website.

The group said some of those interviewed also “did not know what circumstances cannot be considered substantial and compelling circumstances in order to deviate from minimum sentences in rape cases”.

“Some of the candidates did not know what rights are to be explained to the victim of rape after the sentencing of the offender,” it added.

The minimum prescribed sentence for rape ranges from 10 years to life imprisonment.

With 52,420 sexual offence cases reported to the SA Police Service last year and 6,341 brought before the courts, gender activist and founder of the South African Men’s Forum Mbuyiselo Botha yesterday said all judicial officers should know this.

“If they do not even grasp what the law says, it does a huge disservice to rape and sexual assault survivors,” Botha said.

Botha said empowering magistrates and judges to understand the law and its ramifications for survivors should be a critical area of focus for the department of justice.

“We have to redouble our efforts in training our judicial officers,” he said.

Jackie Branfield founded Operation Bobbi Bear, which cares for vulnerable and abused children in KwaZulu-Natal.

Branfield highlighted the important roles presiding officers play in securing justice for the victims of rape and sexual assault.

“At Operation Bobbi Bear, we have a court preparation programme and we tell children who are going to testify in court that the magistrate or judge is their only friend in there,” said Branfield.

The Magistrates Commission was unable to respond to queries from The Citizen yesterday and the spokesperson for the department of justice, Chrispin Phiri, was unable to say which candidates had been successful as his offices had not yet received the recommendations.

“We have been informed that the vetting of the qualifications of the candidates has not been concluded as yet,” he said.

But, he said, these candidates’ apparent lack of knowledge was “a matter of concern”.

“It is imperative that any candidate aspiring for appointment as a senior judicial officer knows the law and applies it without fear or favour,” he said.

Phiri said government and the judiciary supported ongoing training for all ranks of magistrates and judges and viewed it as “extremely important”.

“It is for this very reason that the South African Judicial Education Institute was established,” he said. “The main objective is to establish a national education and training institution for the judiciary.”

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