Tshwaranang Legal Advocacy Centre

Tshwaranang Litigation

S v Hewitt (Durban High Court)

The accused, Stewart Graham Hewitt, was charged and convicted of indecent assault in the Durban Magistrate’s court. Prior to sentencing, he raised an objection that the proceedings were irregular as the complainant had testified through an intermediary although she was over the age of 18. (At the time of testifying, the complainant was aged 18 years and approximately 15 days). This issue had been raised at the time of the complainant’s testimony and the accused, who was represented by an Advocate at the time, stated that the accused had no objection when asked by the Magistrate. After being convicted, the accused took the matter on Review to the Durban High Court. It is at this stage that Tshwaranang got involved and was allowed to make submissions. Judge D. Pillay found that although there had been an irregular proceeding, it had not been a gross irregularity so as to render the proceedings not in accordance with justice. Accordingly, the Judge dismissed the Accused’s Review application. The accused thereafter made an application for leave to Appeal to the SCA against Judge Pillay’s finding that the proceedings had not been irregular. The matter was heard in October 2011 where Tshwaranang made an Application to be admitted as Amicus Curiae. Judge Pillay made a ruling as follows:

  • TLAC’s Amicus Application was granted
  • The LRC’s Application for Joinder was granted
  • The Accused’s Application for leave to Appeal was granted pending his sentencing in the Durban Magistrate’s Court

The accused was thereafter sentenced in the Durban Magistrate’s court in November 2011. Prior to his sentencing, he made an Application to the SCA against Judge Pillay’s order regarding his sentencing. The SCA granted his Appeal but he had already been sentenced at that stage. He was sentenced to 15 years imprisonment and was placed on the Roll of Sex Offenders. On the day of his sentencing, he made an Application for Leave to Appeal to the High Court against his conviction and sentence. He was granted Leave to Appeal and he was released on bail. The Accused has since made a Review Application and an Appeal Application, which will be heard in the Pietermaritzburg High Court.

Sonke Gender Justice Network v Mr. Julius Malema (Equality Court)

These documents relate to Julius Malema's hate speech trial, after he remarked that Zuma's rape accuser had 'had a nice time'

S v Zuma (Witwatersrand Local Division)

These documents relate to the unsuccesful amicus intervention in the rape trial of Jacob Zuma

S v Masiya (Constitutional Court)

This case concerns the anal rape of a 9 year old girl. The Magistrate convicted the perpetrator of rape and the High Court confirmed the conviction. Then, the definition of rape did not include anal penetration and the perpetrator should have been convicted of indecent assault. The application was heard by the Constitutional Court.Tshwaranang and CALS were accepted as Amici in the case and made arguments to the Court on why the current definition of rape was unconstitutional.  Our arguments state the correct understanding of rape involves an understanding of unequal power and that the crime aims to degrade and humiliate.

Vilakazi v State (Supreme Court of Appeal)

In his judgement, judge Nugent AA ( with judges Streicher, Mlambo, Maya JJA and Hurt AJA concurring) noted that rape is a repulsive crime. "It was rightly described by counsel in this case as ‘an invasion of the most private and intimate zone of a woman and strikes at the core of her personhood and dignity” The judge also noted that is as humiliating, degrading and brutal invasion of the privacy, dignity and the person of the victim.

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South Africa.

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