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SA court rules that victim of alleged rape allowed to communicate about her ordeal
A South African court judgment has taken a strong stance against the silencing of victims of gender-based violence and also demonstrates that claims founded on defamation or the Protection of Harassment Act, 2011 (“PHA”) can be counter-productive. In fact, such claims can give more credibility to allegations already published.
The Western Cape Division of the High Court of South Africa (“Appeal Court”) heard an appeal against an order that was handed down in the Magistrates’ Court on 26 November 2020.
The Magistrate’s order prohibited Ms Segerman from telling other people that Mr Petersen raped her. During the appeal, Ms Segerman contended that the Magistrate’s order was wrong in law, and in fact, and that it constituted the regression of the national fight against gender-based violence.
Background
Ms Segerman and Mr Petersen had been involved in a romantic relationship between 2012 and 2015. According to Ms Segerman, she was abused emotionally and mentally during the relationship.
Due to the alleged abuse Ms Segerman had suffered at the hands of Mr Petersen, she tried to end the relationship with him. She had engaged in relations with another man in the hope that Mr Petersen would break up with her. Instead, what transpired according to Ms Segerman, was several hours of verbal abuse from Mr Petersen and him raping her.
Ms Segerman eventually broke the relationship off via a text message. She also applied for a protection order against Mr Petersen around 15 December 2016, which was later withdrawn on 2 March 2017. The parties entered into a settlement agreement thereafter in which they agreed not to make contact with each other. The agreement made no reference to Ms Segerman not being able to allege that she was raped by Mr Petersen.
The Appeal Court noted that it was common cause that Ms Segerman told people about the alleged rape she suffered. Ms Segerman’s version was that although she spoke about the alleged rape, she never publicly identified Mr Petersen as her rapist. The only time she did so, was to a small social media group chat. She also claimed not to have consented to the publication of Mr Petersen’s identity as her rapist.
Protection from harassment order
The publication of Mr Petersen’s identity was what prompted him to take legal action in the Magistrates’ Court in terms of section 10(1) of the PHA. The Magistrates’ Court granted an interim protection order in favour of Mr Petersen, which was subsequently made final. The protection order prevented Ms Segerman from engaging in the harassment of Mr Petersen, and from defaming him or spreading further rumours about him on social media or to others. Ms Segerman was also prevented from disclosing to anyone that Mr Petersen had raped her.
The Appeal Court decision
The Appeal Court, in evaluating the evidence before it, pointed out that the Magistrate was wrong in drawing a negative inference by virtue of Ms Segerman not laying a charge against Mr Petersen.
The Appeal Court considered the evidence of Ms Segerman, which was largely not disputed by Mr Petersen. In particular, the court pointed to a series of messages showing that Mr Petersen was to apologise to Ms Segerman and to tell people that she was not lying about what happened. This the court said meant that there was more to the rape allegation than merely a made-up story.
The Appeal Court also pointed out that despite Mr Petersen being accused of rape on numerous occasions, there was no evidence that he had previously tried to stop Ms Segerman or ask her to refrain from making the allegations. Mr Petersen also failed to add any provision in the settlement agreement in relation to the rape. The court stated that this showed his lack of concern for the rape accusations against him.
The Appeal Court, in considering Ms Segerman’s version and Mr Petersen’s bald denials, came to the conclusion that on a balance of probabilities, Mr Petersen had raped Ms Segerman on 6 July 2015 and that was what he had apologised for. This justified Ms Segerman calling him a rapist and a conviction for rape was not necessary.
The Appeal Court further stated that there was no charge that needed to be laid against Mr Petersen for him to be called a rapist, as he never denied the allegation when Ms Segerman called him a rapist. The Appeal Court concluded that the Magistrate had misdirected himself by drawing a negative inference against Ms Segerman. The court remarked that Ms Segerman had the right to express herself in the manner that she did.
The Appeal Court highlighted that for an act to constitute harassment in terms of the PHA, it required some form of a positive wilful element. The court held that the public statements Ms Segerman had made on social media made no specific reference to Mr Petersen. It was only on a private WhatsApp group that she had specifically identified Mr Petersen, whose identity was later published without Ms Segerman’s consent or knowledge.
The Appeal Court therefore found the Magistrate erred in finding Ms Segerman’s conduct was on a balance of probabilities linked to the harm suffered by Mr Petersen, when she clearly had no control over what other individuals published without her knowledge. The Magistrates’ order was therefore set aside.
Aslam Moosajee
Executive | Dispute Resolution
Inathi Mpapa
Candidate Legal Practitioner | Dispute Resolution
