by Tauhierah Salie
As gender-based violence continues to dominate news coverage in Cape Town and South Africa, calls for public access to the sexual offences register have heightened. However, there have been opposing views on whether community access would be beneficial or not. While some believe it could help prevent the frequency of rape and murder incidents, there are fears it could propel mob justice.
South Africa’s National Register for Sex Offenders contains the details of people convicted of sexual offences against children or mentally disabled people. Those listed are prohibited from working with children or mentally disabled, and from adopting children or acting as foster parents.
The register was created under the administration of the Department of Justice and Constitutional Development, by Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 and came into effect on June 30, 2009 .
An example of what could go wrong, is the mass unrest which centred around the widespread kidnapping and murder case of Elsies River’s Tazne van Wyk, who was snatched meters from her home a week into February. After the discovery of her body in a storm water drain in Worcester, the prime suspect, 54-year-old Mohyiden Pangarker, was the target of livid frustration by thousands of Cape Town residents.
Prior to his arrest in Cradock, Eastern Cape, and subsequent appearance in the Goodwood Magistrate court, Pnagarker’s face was circulated across print and social media platforms amid a desperate search for the girl.
The 8-years-old’s innocence had shaken the community of Elsies River, as it was painfully reminiscent to that of 3-year-old Courtney Pieters who was shamelessly raped and murdered by Mortimer Saunders in 2017.
However, the stark similarities to the murder of Bonteheuwel’s 12-year-old Michalea Williams just a month before- drew attention to the fact that both accused were convicted criminals. Although Michala’s 48-year-old alleged murderer, whose name cannot be published due to a court order, was convicted for the 2003 rape of an 8-year-old girl, he was released on parole in 2018. The man served a mere 13 years of a 20-year sentence.
Similarly, Pangarker had 11 convictions under his belt, including for possession of a stolen vehicle, assault, murder, theft and house breaking dating back to the 1980’s. It later escalated to kidnapping and child abuse and, his latest crime- culpable homicide of his son.
In a statement on Tuesday, the Western Cape Government said it shared the anger of residents in questioning national governments capabilities to manage the criminal justice system and, particularly its parolees.
MEC for Community Safety, Albert Fritz said that if his 11 convictions are a reality, it means the criminal justice system has failed residents and further investigation is needed into the systemic issues faced by the country’s parole system.
“As the Western Cape Government, we are taking a whole of society approach. The Minister of Health, Nomafrench Mbombo, is accompanying Tazne’s family to Worcester Forensic Pathology Laboratory to offer support this morning. The Minister of Social Development, Sharna Fernandez, has also ensured that social workers were deployed to assist the family with this trauma,” Fritz said.
Fritz said he will be requesting the Western Cape Police Ombudsman, Mr JJ Brand, to urgently investigate the matter and noted that he has activated the Court Watching Brief Unit to monitor the case.
“Pangaker was released on parole in 2015, having served only seven years and previously broken correctional supervision. He was placed on parole supervision between October 2016 and May 2019. He then again absconded supervision and a case was opened. Clarity is needed on why Pangaker was not arrested after he absconded,” said Fritz.
Calls for the sexual offences register to be made public have been ongoing following mass protests that gave rise to the #AmINext Movements in 2019. The rape and murder of University of Cape Town student, Uyinene Mrwetyana, was at the heart of demonstration which saw tens of thousands of people across the country calling for reform.
The 19-year-old was ambushed at Claremont post office, situated mere meters away from the local police station. The suspect was, likewise, a convicted sexual offender. Uyinene’s murder, too, came on the heels of dozens of others that included Hannah Cornelius, Jesse Hess, Janika Malo, Delvina Europa, a 1-year-old from Mitchells Plain and an 8 month old from Bontehewuwel.
Anti-gender based violence activist Nelisa Ngqulana created a petition urging Minister of Justice, Ronald Lamola to make the register public. At the time of publishing, the petition had garnered more than 10 600 signatures. Ngqulana said it is clear that those who are responsible for using the register to ensure communities remain safe- are failing to do.
“It came about from the fact that we knew the employer hadn’t gone through the proper checks to check if he had a criminal record. obviously, that brings about the conversation around, if those who are meant to check are not accessing the list- what can we as a public do to protect ourselves?” she questioned.
“Since the petition started in 2019, the president came out to the public and said there’s a need to re-look the list and to make changes to the sexual offences act and the Domestic Violence Act in order for the list to be expanded from what it is currently,” she added.
The activist was referring to President Cyril Ramphosa’s five-step plan that would help the country collectively combat gender-based violence. Ngqulana said that fears that ex-convict will be victimized through the publication of the register were feeble, as their conviction was already in the public domain.
“There are lots of pros and cons to making such a list accessible to the public,” she admitted.
“Some of the concerns people have raised is that people would take the law into their own hands etc, that people who are on the list will be victimised as well as their families. While those things are important to consider, it is also notable that people who make it onto the list are people who have been through the criminal justice system and are convicted. So, chances are if you end up on the list you’ve been through the system,” she explained.
The activist highlighted a recent case where a convicted paedophile, who was found in possession of Western Cape’s biggest record stash of child pornography, was employed to a local school. It was only investigated after parents alerted the schools management of their suspicions.
“We still have cases of schools who are employ educator who are convicted sex offenders- how is that still happening?” she exclaimed.
“All the school could do was write a letter to parents to say ‘we have a concern about this person’… this person is already in contact with young boys. What power do we have as the public when such a situation arises, if the law does not protect us?” she interrogated.
Ngqulana said that there is hopes to make the list a ‘useable and accessible resource for the community’. The activist said communities need to be have confidence that their community is trustworthy.
“If I’m moving into the area and I don’t know anything about the area- do I have the right to know who I’m living amongst?”
“Going to prison and coming back is not the issue. The issue here is, do people who move into the area, who didn’t live there before you were there, get to know that they’re living in a space with someone who has a history of sexual offences,” she explained.
Former magistrate Deon Pool was in agreement that the list should be made public – but not in its current form. He pointed out that, in a constitutional democracy, it is difficult to balance individual rights and community expectations of communal rights.
“The fact of the matter remains that you have that balancing act between the individual right that an individual has like the right to dignity, privacy and those, versus the rights of our societies to know whether our children are exposed to predatory behaviour or are vulnerable in any sense,” he said.
The member of the Johannesburg bar explained that the list leaves a lot to be desired.
“The big issue is that the register in its current form- and any register that might be made available to the public- needs to be very particularly administered and made sure that the information contained current and correct,” said Pool.
“It is not properly administered, and the information thereon might be incorrect and might also not be current,” he stated.
“If administration is lacking then the list means nothing,” he added.
Pool also noted that there are two registers in the country: the Sexual Offences Register and another accessed by the Department Of Social Development, ‘that has a little bit more information, specifically of children who have been abused or neglected in other instances.’
Pool suggests that the list needs to be merged and then categorically divided.
“These two registered need to be integrated to a certain extent so that they contain a more holistic view in respect of how the children are imperiled or to what extent that they are facing vulnerabilities,” he state.
“Certain parts of that register are (then) available to public, depending on the circumstances that relate to each. Specifically, there’s nothing wrong with the prescripts or the Act itself when it comes to sexual offences. The issue lies that the register is not properly maintained.”
Deon referenced the findings of head of Gender Program at the Centre for Applied Legal Studies, Sheena Swemmer, who revealed that the list only contained 50 names.
“That can simply not be possible that there are only 50 people in this country that have ever been convicted of a sexual offence concerning a child. it means that, even its current form, the register has already fallen by the way-side and is not being treated with the necessary urgency and respect that it is required to be treated with. That, of course creates more problems than it offers solutions,” said Pool.
“The mere fact that there are only 50 names is an indictment on the Act and the Act is very specific- it tells you exactly what you need to do, how you need to do it.”