Justice is the colour of money and the weight of numbers – which is just another way of saying that justice depends as much on the mundane art of administration, as it does on law and rights. To understand this it's necessary to take a closer look at South Africa's regional magistrates’ courts where the vast majority of rape cases are heard and cameras seldom go.
The regional courts deal with a high number of criminal matters generally. Earlier this month, in a presentation to parliament, the Department of Justice stated that the high courts placed 988 matters on the court roll and finalised 971, while the regional courts enrolled 53 309 matters and finalised 33 246 of these. With this number of cases and all the staff they require, space is at a premium and busy magistrates’ courts increasingly resemble small villages crammed higgledy-piggledy with brick buildings, zozo huts and shipping containers.
When space can’t be created in this way, its lack will have real consequences for rape matters. Testifying via closed circuit television (CCTV) is crucial for children and adults terrified by the thought of being in the same room as the accused. But this requires setting up a room separate from the court in which complainants can sit and answer the questions put to them via a head set.
Separate waiting rooms also need space. Where this can’t be found complainants must sit in the passages with everyone else and run the risk of encountering the accused (if he is out on bail) and/or his family and friends.
A specialised sexual offences court cannot be established in the absence of these facilities.
By the end of 2017/18, 74 regional courts nationally possessed some version of a specialised court, according to the Department of Justice. However, the shortage of space at busy courts has led to some specialised facilities being located at less busy courts – even though the busier courts, with a higher number of rape cases, have the greater need.
One of the aims of the specialised courts is to reduce the length of time taken to prepare and prosecute rape matters. A court dedicated solely to hearing these matters is key to this goal because it prevents rape cases from having to compete with other criminal matters for time and attention. However, a number of sexual offences courts are not dedicated but hybrid courts, meaning that the court will also deal with other crimes (although efforts are made to keep the number of other such cases low). Again, this has to do with space. If matters are not proceeding in the dedicated court (because the witnesses have been unable to come to court, for example) then it stands idle – a sure recipe for disgruntlement and complaint in the context of crowded court rolls, case finalisation targets and case backlogs.