S v P – The Abuse of Protection Orders to "Gag" Victims of Rape

Abstract

In recent years there has been the emergence of global and local anti-gender-based violence movements such as #MeToo and, in South  Africa, #menaretrash, which has precipitated an increase in the disclosure of the names of the alleged perpetrators of sexual violence by  the survivors. The increase in the disclosure of these names has been met with the intensification of legal processes by alleged  perpetrators to counter and silence survivors. This case note will focus on the recent appeal case of S v P 2022 2 SACR 81 (WCC) in the  High Court of South Africa, Western Cape Division, in Cape Town. In this case the court had to consider whether the court a quo was  correct in issuing a final protection order (in terms of the Protection from Harassment Act 17 of 2011) against the appellant (S) where the  court a quo found that her act of harassment was a third party's public disclosure of the respondent (P) as her rapist. It will be argued  that the Western Cape High Court was correct in finding that the court a quo should not have issued a final protection order against S. It  will be further argued that the reasons to overturn this decision included the court a quo's failure to appreciate the gendered purpose of  the Protection from Harassment Act and that P misused and abused the Act in order to silence S. It will then be argued that one of the  reasons why survivors choose to disclose alleged perpetrators' names on social platforms is a societal contextual reason, which includes  the high rates of gender-based violence in South Africa alongside the high rates of attrition in gender-based violence cases in the criminal  justice system. Finally, I will consider the cases of Mdlekeza v Gallie 2021 (WCHC) (unreported) case number 15490/2020 of 20  April 2021 and Booysen v Major (WCHC) (unreported) case number 5043/2021 of 30 August 2012 and argue that these cases are further  examples of this abuse of process employed to silence survivors. With the courts seeing an increase in these applications to silence  victims, it is argued that the courts must adopt a feminist-contextualised approach in order to avoid gagging survivors of gender-based violence and being complicit in the increasing weaponisation of court processes by alleged perpetrators.