CHAPTER 29

• Jurisdiction: United States

CHAPTER 29

The #MeToo Movement in South Africa: A New Platform for an Old War

Debbie Collier¹

"Maybe . . . [we] are searching among the branches, for what only appears in the roots."

—Rumi²

Introduction

Gender-based violence (GBV) and harassment are global phenomena, with exceedingly high prevalence rates in the various regions in Africa.³ In South Africa, a country emerging from the complex trauma of an oppressive past shaped by patriarchal and racist ideologies, sex discrimination, sexual offenses, and harassment occur at levels that significantly undermine human development and social relations.⁴

Most recently, the extent of the crisis in South Africa was highlighted by the brutal rape and murder of first-year University of Cape Town student, Uyinene Mrwetyana, at the Clarenreich Post Office in Cape Town. On August 24, 2019, Uyinene fell victim to the predilections of a post office teller when she visited the post office to collect a parcel.⁵ This event—unfortunately, one of many—sparked outrage and mass action⁶ that was visible both on the streets⁷ and online in social media campaigns such as #RIPUyinene and #AmINext.

Although South Africa has a comprehensive legal framework to address the scourge of GBV and harassment, the effectiveness of the law has been limited. One area of progress at least has been in the context of the workplace and the world of work.⁸

With this as backdrop, perhaps the significance of the #MeToo movement is the sense of (global) solidarity and the momentum it has generated, nudging social and legal processes as a result. Although the #MeToo movement itself has had limited application in South Africa, and in African countries more generally,⁹ it has shifted awareness, attitudes, and behavior toward GBV and harassment, prompting more effective implementation of the law. This is apparent from a 2018 Labour Court judgment stating:

In the face and growth of global movements such as '#MeToo'; 'The Silence Breakers'; '#NotInMyName', and '#BalanceTonPorc' or 'out your pig', there is an even greater need for more sensitisation to the scourge of sexual harassment in the workplace. Equally so, there is an even greater need for the . . . [labor dispute resolution tribunals] to place more emphasis on specialised training to deal with such cases. . . . [T]his case . . . [is] . . . a reminder of the need for the urgency and seriousness with which such training is necessary, and for it to be provided on an on-going basis.¹⁰

In the South African context, #MeToo builds on work that had already began to chip away at the heart of gender-based violence and harassment. In this regard, the life (and death) of Fezekile Ntsukela Kuzwayo, known to the public as Khwezi,¹¹ is worth recounting. Khwezi's experience draws attention to the power imbalance between perpetrators and victims, often securing the victim's silence. Khwezi, however, refused to remain silent.¹²

Remember Khwezi: The Backdrop to #MeToo in South Africa

Khwezi's trauma began at a young age: when, while exiled with her family during apartheid, she experienced sexual abuse at the age of five, and again at ages twelve and thirteen. These transgressions were dealt with by internal processes within the exiled community.¹³ Subsequently, in 2006, she spoke out against one of South Africa's most powerful men when she accused Jacob Zuma of rape.

By the time Khwezi was thirty-one years old and Zuma was sixty-four; Khwezi's father had passed away when she was ten and Zuma, who knew her father, was a father figure to her. He would tell Khwezi stories of her father, and she would seek him out from time to time for his support and advice on her plans. She called Zuma "malume," meaning uncle, and on the evening in question, in November 2005, she visited Zuma at his home, upon receiving news that the son of her niece had been hospitalized in Swaziland. She sought his counsel, informing Zuma that she intended to travel to Swaziland. Notwithstanding her positive HIV status, Zuma had unprotected sex with Khwezi that evening which, Khwezi avowed, she would never have agreed to.

Of these events, and the subsequent trial, the judge hearing the matter took the view that:

. . . both of them are to be blamed for the fact that it [the trial] affected them [adding that] . . . [t]he accused should not have had sexual intercourse with a person so many years younger than himself and furthermore being the child of an old comrade and a woman plus minus [half ] his age.¹⁴

Notwithstanding condemnation of Zuma's conduct, he was acquitted (an outcome not supported by all legal commentators).¹⁵ In the judge's view, what had happened between the two of them had been consensual; the judge rejected the argument that Khwezi's response had been to freeze and submit. In any event, the mens rea for rape is intention, and, to be found guilty, Zuma must have known that Khwezi did not consent. The judge was not convinced that it was shown, beyond reasonable doubt, that Zuma had the required mens rea.

According to the judge, the trial was "unfortunate" and "had a damaging effect on both."¹⁶ The damage to Zuma could not have been extensive, however, as he would go on to become president of South Africa in 2009, just three years after the trial, while Khwezi, on the other hand, was vilified in the extreme by Zuma's supporters. She was confined to witness protection and her family house was burned down during the trial.¹⁷ Immediately after the trial, she and her mother left South Africa for reasons of personal safety, remaining abroad for a period of five years before returning to South Africa.

In many respects, Khwezi was South Africa's #MeToo moment: she refused to be silenced, notwithstanding the backlash. She courageously owned and spoke her truth in the most hostile of environments and consequently, as Redi Tlhabi suggests, Khwezi opened the space "for us to have the conversation about male power, its entitlement and our complicity in aiding and abetting it."¹⁸ Perhaps the most salient feature of the #MeToo movement that resonates with Khwezi's story is the extent to which patriarchal values are shown to be so deeply embedded within our institutions and thought processes, shaping our realities and expectations and how we relate to each other and to ourselves. This is a state of being in which Khwezi refused to be complicit.

Khwezi's story was again animated a decade after Zuma's rape trial and just two months before Khwezi's passing. On this occasion, in August 2016, four young women, bearing placards with reference to Khwezi, stood in silent protest in front of a podium where Zuma was positioned to deliver the results of local government elections.¹⁹ It was not long before the women were forcefully removed by security.

The #RememberKhwezi silent protest and the activities of young, primarily black, student activists on South African university campuses who, earlier in the year, mobilized under the banner of the #EndRapeCulture campaign, show a growing intolerance toward the normalization of sexual violence in South African, specifically in the context of South African universities.²⁰

The #EndRapeCulture campaign draws attention to the role of culture as a factor in GBV and harassment, and how "individual men are socialised and groomed into the normalisation of sexual violence and . . . unless . . . [treated] as a systemic problem, we will only remove perpetrators one at a time and still not deal with cultures that promote sexual violence."²¹ Consequently, the insensitive treatment of victims and the inadequate response to sexual violence on campuses prompted female students, black students in particular, to speak out, articulating from their position at the intersection of race, gender, and sexuality.²² The response by Rhodes University students was to publish the "#RU Reference List," a list of the names of alleged rapists who were students at Rhodes University, which was published on social media in April 2016, squarely advancing the struggle against sexual violence into cyberspace.²³

Undoubtedly, emerging technologies, such as Twitter and other forms of social media, are an important platform for sharing experiences and organizing against sexual violence. The outcome is that, in the context of university campuses in South Africa, various task teams have been established to consider the institutional culture and the appropriate policy response, including a Ministerial task team.²⁴

With these developments being shaped by the South African youth, it is perhaps not surprising that the #MeToo movement might catch the imagination of an older generation. In this case, including that of women freedom fighters who had, many years previously while in exile, experienced sexual violence at the hands of their male comrades alongside whom they received military training and fought against the apartheid government.²⁵ These are the women who planned to take their painful secrets to the grave and who, a decade earlier, would have put pressure on Khwezi to drop the rape charge against Zuma.

#MeToo has prompted women to shift out of the silence that society expected of, and imposed on, them. Their ability to speak out and to organize against sexual violence and harassment is supported, not only by access to technology and social media platforms, but also by a matrix of laws within a comprehensive legal framework. One of the virtues of the #MeToo movement has been the extent to which it has nudged this framework into action.²⁶

The Legal Framework in South Africa

Pivotal legislation for the prevention of sexual violence in South Africa includes the 2007 "Sexual Offences Act (SOA),"²⁷ the enactment of which was long anticipated, with the legislation emerging after "a prolonged and iterative reform process."²⁸ The Sexual Offences Act consolidated the law on sexual offences, providing a comprehensive criminal law framework for sexual offence prosecutions.

In the civil law context, the...