Source : Women's legal centre

The Women’s Legal Centre  is inspired by the judgement handed down by the Western Cape High Court this morning in which the Court overturned an order made by the Cape Town Magistrate’s Court gagging our client from speaking about the fact that she was raped by her ex-boyfriend.

Our client, the applicant in this matter before the High Court on appeal, was raped on 6 July 2015 by her ex-boyfriend. She later spoke to her immediate friends and family about this experience, sought help from a counsellor and posted about her experience in a closed, private and anonymous social media platform group in which she named him as her rapist as a way to warn others, and to seek healing, community and support from other women who had similar experiences of sexual violence.

The posts were intended to remain private and not for public distribution. Without our client’s consent or permission, someone in the private group made her posts public on various social media platforms. In response to this, her ex-boyfriend applied for a protection order against her, arguing that she was harassing him by speaking about him to others through her identifying him as a rapist, and that this had caused him harm.

The Magistrates Court granted the protection order against our client which stated that our client was “not allowed to tell anyone, in any manner, that he had raped her”. Given the devastating and chilling effect this order had on our client and women in similiar positions, an appeal was filed to the High Court seeking to have the order overturned.  

In a groundbreaking judgement handed down by Judge Henney J and Thulare J, the Court affirmed the right of our client and women to freely speak about  violence without being gagged and silenced. The Judgement explained that our client, in speaking about her experience of rape, was “trying to be heard, to find healing and to protect others from suffering the same fate” and that she has the “right to speak out and express herself about the experiences she had endured”.

The Court further found that a negative inference cannot be drawn in instances where a women has not laid a criminal charge against their perpetrator. The High Court agreed and highlighted the principles established by the Constitutional Court in another case in which the WLC participated as amicus curiae,  Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others, which stated that the systematic sexual exploitation of women and children depends on secrecy, fear and shame. This acknowledges how women are threatened and shamed into silence which makes it impossible for victims to report what happened even to friends and loved ones, let alone state officials. The Court found that the magistrate in granting the protection order against our client in which he gagged and silenced her, perpetuated the notion that women who survive violence should not speak out, should remain silent about their experiences, and should be careful of who they speak to.

The High Court, having heard all the facts as presented by our client before them, further stated that there was no reason to doubt our client’s version and that the magistrate misdirected himself and was wrong in drawing a negative inference from the fact that there were no criminal charges laid against the respondent or conviction against him for rape.  The High Court directly stated that “there was no need for her to lay a charge against him and to have him prosecuted and convicted to be labelled as a rapist based on the evidence of this case”.  This affirms that the lack or absence of a conviction does not render a fact that has happened untrue or nonexistent especially in cases of rape where it has been judicially recognised that most victims of rape do not report rape to the police. We are encouraged by this because it affirms the WLC’s intersectional approach towards sexual violence and centering the lived realities of women and their experiences at the forefront of any litigation.

We continue our efforts to ensure that women who experience sexual violence are not gagged, and silenced through abusive court processes that weaponise the law against them. We look forward to courts continuing to apply the lived reality of women and an intersectional feminist approach in their adjudication of sexual offences matters.