Further delays in rape case a disappointing setback in quest for justice
In the week President Cyril Ramaphosa dedicated his entire Letter from the President to the scourge of gender-based violence, the Somerset East Regional Court postponed a rape case for a further five months.
It is yet another disappointing indication that the courts lack the required urgency to finalise matters of such seriousness.
AfriForum’s Private Prosecution Unit is pursuing a private prosecution against Isaac Andile Memese, on behalf of the complainant, Celeste Gouws. Memese allegedly raped Gouws at her guesthouse in 2017 after she had presumably been drugged.
The Director of Public Prosecutions (DPP) in the Eastern Cape initially refused to prosecute Memese, despite overwhelming evidence against him. AfriForum believes that the handling of the matter point to political interference, as Memese and his family have political ties.
In court today, 1 December, Memese’s attorney, Zama Somahela told the court that defence counsel, Adv. Mike Maseti could not attend the proceedings because he was ill. He asked that the matter be postponed. On Monday, Maseti had sent a vague email to AfriForum and the magistrate saying he has been confined to bed for the last six weeks, and that he “cannot fancy the chance that (he) would be there for the matter”.
Representing Gouws, Adv. Gerrie Nel opposed the application, asking the court to get further clarity from counsel as to why the matter should be delayed. “Perhaps a bit philosophical, but courts are instruments of society to ensure that justice is done, and courts must therefore ensure that society maintains its confidence in the criminal justice system.
“On the other hand, we are the pawns who must explain to the victims and society that the matter will be postponed again. Therefore, we must instil confidence even if a court merely accepts unsubstantiated facts for postponement,” said Nel.
Nel went further by arguing that it has become far too commonplace in the courts for cases to be postponed without the application being substantiated. He argued that the default position of courts must be for matters to proceed. “Everybody knows that counsel’s mere say-so of his unavailability to proceed with the trial will be accepted. Everybody knows that courts elevate the interest of an accused even above the interest of justice. Everybody knows that the commitment by the government and the President to deal with gender-based violence cases is mere lip service if the courts don’t act decisively against unreasonable delays caused by any one of the parties,” said Nel, with reference to the global movement for 16 Days of Activism for no Violence Against Women and Children.
Despite the argument, the court still postponed the matter until 19 April 2023.
The unit’s spokesperson, Barry Bateman expressed disappointment at the court’s decision. “The trial had been set down for four days, but instead of the court hearing evidence from the defence, the case and Celeste’s quest for justice will be set back by another five months.
“We are hopeful that when the matter resumes in April, the defence legal team will be ready to lead their evidence to conclude this aspect of the trial. The alleged offence took place five years ago, any further delay is simply unacceptable,” said Bateman.
Outside court, a fracas ensued when Somahela falsely accused a member of Nel’s team of disrespecting him. The lawyer earlier had complained to the court that photographs were being taken of his client and that they detested such conduct. The magistrate dismissed his complaint as being unrelated to the proceedings before the court.
