By TLAMELO M MOTHUDI
On Sunday 4 August 2019, I was woken up to news that a young woman in Makhanda was reported to have survived a rape.
Chapter 2, section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 defines rape as the unlawful and intentional act of sexual penetration towards a complainant, without their consent.
The survivor, numb with the trauma that had been forced upon her body, was taken to Settlers Hospital at 4am for medical assistance and to have a rape kit 1 administered. Upon arrival at the hospital, a rape kit was not administered because there was only one doctor on call, who was seeing to two babies in critical condition, and she was not considered an emergency.
She sat in the hospital waiting area from 4am to midday until another doctor administered the rape kit. After being at the hospital for 10 hours, she finally left at 2.15pm. During this time, she received no psychological counselling.
On 2 July 2019, the MEC of Health Ms Sindisiwe Gomba presented the Eastern Cape Department of Health (ECDoH) 2019/20 Budget and Policy Speech. This speech followed the President’s signing of the declaration against Gender Based Violence (GBV) and femicide in November 2018 in which he stated that South Africa is facing a crisis and that rape, abuse and sexual assault are rampant.
In her speech, the Health MEC outlined that the government would take immediate steps to improve the state of hospitals and clinics in the province. She gave assurances that her administration would “khawuleza” in delivering much needed services to the province.
Where is the sense of urgency?
In 1998, the National Department of Health’s (NDoH) Uniform national guidelines for dealing with survivors of rape and other sexual offences, 2 were operational. These guidelines sought to create an integrated and coordinated process to provide for the psychological and physical care of the survivor and to enable the collection of medico-legal evidence for the successful prosecution of the perpetrator in the criminal justice system.
The guidelines emphasised that “Services should be available on a 24-hour basis with minimal delays in victim/ survivor being seen for the following reasons 3:
a. Rape victims should be forwarded to the front of a health queue – though confidentiality should be maintained.
b. For forensic reasons, medical evidence needs to be captured as quickly as possible.
c. The victim should be allowed to wash after the examination.
d. The medical/ psychological problems should be dealt with quickly.
These guidelines were superseded by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act). The Act recognises that sexual violence in South Africa is a grave concern which has a particularly disadvantageous impact on vulnerable persons and the society at large. The Act was a response to the realisation that the statutory and common law did not adequately and effectively deal with the commission and adjudication of sexual violence in South Africa.
While the Act changed many things 4 and provided survivors of sexual violence with various services 5 , it failed to retain the same levels of priority treatment and assessment described in the 1998 guidelines. Without guidelines that clearly emphasise the importance of survivors being treated with dignity, respect and especially prioritisation, there is likely to be an increase in incidences of survivors of sexual assaults waiting hours before they are assisted. Besides there being a delay in the patient’s treatment, it also impacts negatively upon the collection of evidence needed to support a criminal investigation.
In November 2017, John Jeffrey, then Deputy Minister of the Department of Justice and Constitutional Development, emphasised at the National Forum on the Implementation of the Sexual Offences Act that any laws are only as good as the people who implement them. He noted that different people play different roles at various stages in the process where a survivor goes forward to report a sexual assault and all the roleplayers are crucial.
Makhanda is home to 82 000 people. The town has a 32.5% unemployment rate. Bearing these statistics in mind, one can imagine the extent of poverty and reliance of the community on public healthcare services. With the closest Thuthuzela care centre 6 located in Port Elizabeth, the Makhanda community relies heavily on the only hospital in town, Settlers Hospital for emergency healthcare services, especially for rape cases. But currently, the hospital is understaffed.
Anecdotal accounts indicate a shortage of doctors at Settlers Hospital, which has resulted in patients not being deemed “emergencies” in the hierarchy of emergency cases, and then having to wait hours for medical assistance. On 22 July 2019, there was email communication sent to Rhodes University from Settlers Hospital outlining that after hours (between 4pm-7am), during weekends and public holidays, there is only one medical practitioner (doctor) working which will result in “non-urgent” patients waiting in the Accident and Emergency Department for longer than normal.
The ECDoH must conduct an urgent investigation into the current state of Settlers Hospital and others like it, with a particular focus on the shortage of healthcare personnel. This must be done to prevent the future occurrence of situations where victims of rape are made to wait hours for medical assistance, counselling and the administration of a rape kit.
The South African Constitution recognises that everyone is equal before the law and has the right to equal protection and benefit of the law. Everyone has inherent dignity and the right to have his or her dignity respected and protected; and that everyone has the right to bodily and psychological integrity.
One must wonder, in the circumstances, how many rape survivors, who have turned to Eastern Cape Health facilities after hours, have walked away without assistance, after having waited and waited for hours, to see someone, anyone.
1. Makhanda needs an adequately resourced Thuthuzela centre established. The ECDoH must work together with the National Prosecuting Authority to ensure that a Thuthuzela centre is set up in Makhanda.
2. Requisite public/donor funding and/or funding from the National Department of Health (NDoH) is urgently needed to fund Thuthuzela centres.
3. Until a Thuthuzela centre is set up in Makhanda, the ECDoH must ensure that healthcare facilities treat rape survivors with the same respect and dignity they would receive at a Thuthuzela centre.
4. The ECDoH must urgently deal with the shortage of doctors at Settlers Hospital.
5. The ECDoH must ensure that rape survivors are treated as priority patients at all healthcare facilities in the Eastern Cape.
6. The National Department of Health’s (NDoH) uniform national guidelines for dealing with survivors of rape and other sexual offences must be revisited with view to establishing protocols which must be followed in cases of reports of sexual assault.
Once established, the National Policy Framework for the Management of Sexual offences matters must be amended to incorporate them.
RESPONSE FROM THE MEC
Through her media liaison officer, the MEC Sindiswa Gomba responded to Grocott’s Mail in a telephone call on Wednesday 4 September as follows: “Before the end of the financial year, the Department will employ around 500 health professionals to address the shortage of staff.”