Access To Justice, A Myth In The Lives Of South African Women
Access to justice is a constitutional right that serves as a foundation for protecting all human rights, as it guarantees citizens retribution should their rights be violated. In South Africa, the legal frameworks stipulated in the Constitution are not reflected in the lived experiences of women as they face a number of systemic stumbling blocks, such as revictimization by police officers and court officials, discrimination, cultural and traditional practices, and socio-economic factors that prevent access to justice. This then denies women their Constitutional right to justice.
As stipulated by NE SAKARIA in her article Access to justice for black women in South Africa: A feminist social justice perspective, “— access to justice not only improves and protects the lives of affected women but also promotes security, power, capacity, and the culpability of people to make informed decisions”. In a country with high rates of gender-based violence and femicide, where women form part of the marginalized group and repeatedly face abuse and violations of their rights in their homes, communities and in the workplace, the realisation of the right of access to justice is of utmost importance for women as it is their only recourse when their rights are violated. Without it, the statistics around women facing violence will increase, perpetrators will walk free, and women's voices will never be heard. Access to justice is the key element required to curb violence against women and children.
The Constitutional Definition of Access To Justice
Access to justice is defined in section 34 of the Constitution, which states:
“Everyone has a right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”
It further finds footing in the right to equality enshrined in section 9 of the Constitution, which stipulates that everyone is equal before the law. This guarantees citizens equal benefits and protection under the law.
Access to justice goes beyond the ability to report a crime, it encompasses an individual's experiences with all involved persons when his or her rights have been violated. This includes the lack of financial means to access a police station and/or the court, interactions with officials, socio-economic factors such as poverty and unemployment, corruption, discrimination, and lack of transparency and accountability in the justice system.
In theory, section 34, read together with section 9 of the Constitution, promises a seamless process, from the time a crime is reported, to prosecution and justice being served in the event of one’s rights being violated. However, this is not the reality of the marginalized groups, with a specific focus on black and underprivileged women and girls. What is guaranteed in the constitution does not translate into the lived experiences of South African women.
WOMEN AND THE LAW
In 2021, the “Multi-Country Analytical Study on Justice for Victims and Survivors of Violence Against Women and Girls in East and Southern Africa” by United Nations Women revealed that patriarchy, toxic masculinity, and cultural norms influence women’s experiences with access to justice. Thirty-one years into democracy, with a constitution that promises equality under the law, women still face multiple barriers in the pursuit of access to justice. The study revealed that women across all the countries that were selected as part of the study face sexual abuse, physical violence, female genital mutilation, divorce and child custody breaches, child marriage, abuse of inheritance rights, widowhood rights and land security rights, it was further identified that femicide and emotional violence are the most common forms of violence directed against women and vulnerable groups, this includes women with disabilities.
The justice system fails to provide an environment that is conducive to attaining justice. In maintenance courts, women spend hours collecting the necessary information required to lodge a case, but the complex documents and failure to trace the father result in unsuccessful cases. For guaranteed success in such cases, a legal practitioner and a tracer are required, but one must be in a favourable financial position to make use of these services. In criminal courts, victims of sexual assault face the misfortune of disappearing dockets, delays in DNA testing and results, and gruesome seasoned defence attorneys who shred victims' human dignity and safety to pieces to secure the perpetrator's freedom.
FACTORS AFFECTING WOMEN'S ACCESS TO JUSTICE
1. Revictimization
The aggressive cross-examination of Cheryl Zondi in the Omotoso Case depicted to many what women who choose to speak out against their attackers go through. Women are belittled and made to relive their traumatic experiences in their attempt to ensure that justice is served. Our justice system fails to protect women from brutal and insensitive cross-examinations, and complainants are revictimized throughout the trial process.
The psychological impact of sitting through a trial, to later be told that the accused has been acquitted due to lack of evidence or non-adherence to proper procedure, has resulted in women rejecting the idea of speaking out and seeking justice. A victim-friendly approach that prioritises achieving justice in a manner that respects rights and psychological and mental wellbeing would eliminate this barrier that women face.
2. Access to courts
The geographic setting of rural areas in South Africa acts as a stumbling block and contributes to factors affecting access to justice. To access courts and police stations, women must leave their homes in the wee hours of the morning due to how the communities were designed. It is a norm that the court with jurisdiction for multiple communities is placed in a town that takes one or two taxi rides to access. This is both costly and dangerous for women in a country where gender-based violence and femicide are rife. An inference can be made that women in rural areas' lives are placed at risk each time they decide to make use of the legal system.
3. Socio-economic factors
Traveling costs, unemployment, and the risk of income loss are some socioeconomic barriers that prevent access to justice. In a country where the unemployment rate is currently 31.9%, complainants can not afford to miss work and incur costs associated with access to justice. Yes, the courts reimburse complainants and witnesses for traveling expenses, but the risk of job and income loss for the day for informal traders and those working under “no work, no pay” conditions is not counteracted.
4. Patriarchy, traditional, and cultural practices
Routed in patriarchy, traditional courts and the power of traditional leaders in rural areas dictate how justice is served. A recent workshop by the Democracy Development Program focused on understanding the sexual corruption in the rural parts of KwaZulu-Natal. Women who attended revealed that most widows and young women face abuse at the hands of traditional leaders and, unfortunately, have to report the abuse at traditional courts run by perpetrators or friends of the perpetrators, for a fee of R450. It was mentioned that traditional courts are not run in line with the constitution and tend to look down on widows and young women, as a result, women do not feel safe and are denied justice.
CONCLUSION
Both International law and the Constitution guarantee the right to access to justice; however, the lived experiences of South African women prove that access to justice is still a myth. The Department of Justice and National Prosecuting Authority need to improve the justice system by implementing victim-friendly approaches within the South African Police SERVICES, Courts, and Traditional Courts. It cannot be that 31 years into democracy, women continue to be violated by a justice system that should be protecting them.
Xoliswa Jwili is a DDP associate and writes in her personal capacity.
